B e f o
r
e :
MR JUSTICE COLLINS
____________________
Between:
____________________
Mr Manjit Gill, Q.C. & Mr Basharat Ali (Solicitor Advocate) (instructed by Aman Solicitors Advocates)
for the
Claimant
Mr Robert Jay, Q.C. & Ms Nicola Greaney (instructed by
The
Treasury Solicitor)
for the
Defendant
Hearing dates: 8 December 2006
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
Mr Justice COLLINS :
The
claimant, who was born on 10 August 1979, is a citizen
of
Afghanistan. As a result
of
persecution by
the
Taliban, who were then in control
of
Afghanistan, he fled
the
country and entered
the
United Kingdom by means
of
a false passport on 16 September 1999. He went to solicitors and, following advice from them, attended
the Home
Office to claim asylum on 17 September. On 14 October he submitted a self-completed questionnaire in accordance with normal practice. Nothing was heard from
the Home
Office and so on 16 November
2000
his then solicitors wrote expressing their concern at
the
delay and pointing out that "many other Afghan nationals have received a decision within a shorter period
of
time".
The
solicitors further requested a Statement
of
Evidence form (SEF). In
the
absence
of
any reply, they wrote again on 16 February 2001. This resulted in
the
provision
of
an SEF which was duly completed and submitted to
the Home
Office on 11 March 2001.
- Nothing happened. On 3 May 2001
the
solicitors wrote again asking as a matter
of
urgency
for
an indication when a full interview would take place. There was no reply. On 3 August 2001 a further letter was sent asking
for
an interview and threatening
the
making
of
a formal complaint. Again there was no response. New solicitors wrote again on 8
January 2002
. At last, an answer was received, albeit an entirely unsatisfactory one. On 25
January 2002
,
the Home
Office, after apologising
for
not having responded to any
of the
previous letters, stated:-
"Unfortunately a sharp increase in applications
for
asylum received in 2001 has meant applications received prior to 2001 have been put on hold
for the
time being. [
S
] applied in September 1999 and I regret to say his claim is therefore unable to be considered at present. We are however fully aware that he needs to be interviewed before any decision can be made and we will invite him to attend
the Home
Office when it is convenient to do so."
- In
the
absence
of
any further communication,
the
solicitors wrote again on 16 September
2002
, 23 October
2002
, 23
January
2003 and 10 March 2003. True to form,
the Home
Office did not deign to reply to any
of
these letters, despite being told
of the
claimant'
s
concern and distress at
the
delay. However, after 4 months on
7
July 2003
the Home
Office wrote saying:-
"I can advise you that your client'
s Home
Office file is currently in a queue awaiting
the
booking
of
a substantive asylum interview. Unfortunately, I am not able to advise you at this time when
the
interview is likely to take place. I can assure you, however, that you will be informed
of the
date, time and location
of the
interview, once we are in a position to confirm your interview."
For
some reason, a further letter containing
the
same information was sent and signed by
the
same caseworker on 25 July 2003. No doubt this, coupled with
the
indefensible failures even to acknowledge letters, reflected
the
poor
state of
affairs in
the
Immigration and Nationality Directorate (IND).
The
claimant was at last interviewed on 12 March 2004 and on 16 March his claim was refused. By then,
the
Taliban had been removed and circumstances in Afghanistan had changed and so it was not altogether surprising that it was decided that he would not, if returned, be at real risk
of
persecution.
The
refusal letter did not in terms consider Articles 3 or 8
of the
European Convention on Human Rights, although an Article 3 claim would fail if there was no real risk
of
persecution. No Article 8 claim based on a breach
of
any right which had accrued during
the
4 ˝ years delay in dealing with
the
claimant'
s
case seems to have been made. Certainly none was considered in
the
refusal letter.
The
claimant appealed against
the
decision to remove him as an illegal entrant.
The
adjudicator, in a determination
of
11 June 2004, decided that
the
claimant did have a well founded fear
of
persecution when he left Afghanistan, but that, since
the
Taliban had been ousted, there was, despite his claim that he was still at risk from members
of
some parties in power because
of
his support
for
an organisation known as Harakat-e-Islami, now no risk
of
persecution.
The
adjudicator accepted that
the
claimant had been targeted by
the
Taliban because he was a Hazara and a Shi'a Muslim. However, he did not find
the
claimant to have been entirely truthful in that he had produced two documents purporting to be arrest warrants. This was an attempt to gild
the
lily.
The
claimant raised an Article 8 claim in his appeal. It was based on
the
establishment
of
a private life and
the
assertion that he was a highly valued member
of the
staff where he worked. A letter was produced from his employer to that effect. But no further details were given by
the
claimant and
the
adjudicator decided that there would be no breach and in any event return would be proportionate.
The
claimant did not apparently refer to his association with and plans to marry a British citizen. That association had, on
the
evidence produced before me, commenced in
2002
.
The
lady in question was and remains married and there were concerns that she would suffer if her family or her husband discovered what was happening. She says that in October 2005 she finally decided that come what may she was going to seek a divorce to end her unhappy marriage and she and
the
claimant would then marry. He says that she and he agreed that she would allow him to get
the
right to live in
the
U.K. on his own merits and then she would divorce her husband and marry him. Since his cousin, who had come to this country at
the
same time as he, had been granted four years exceptional leave to remain (ELR), he saw no reason why he should not be treated similarly. I can well understand why he held this view.
The
claimant'
s
solicitors sought permission to appeal to
the
Immigration Appeal tribunal. This was refused on 12 November 2004. Prior to that, on 11 October 2004
the
claimant through his solicitors applied
for
discretionary leave to remain in
the
U.K. based on his integration, his Article 8 right to private life and fear
of
persecution in Afghanistan. There were enclosed a number
of
letters showing his good work record and achievements in this country. Yet again,
the Home
Office failed to respond and in June 2005
the
solicitors wrote to
the
local MP asking
for
his help. A further letter to
the Home
Office on 18 August 2005 was again seemingly ignored so that a chasing letter was sent on 11 October 2005. On 3 November 2005,
the Home
Office refused
the
application (having delayed
for
over 12 months). It was accepted that
the
claimant "may have established a private life" but
the
view was taken that it was vital to maintain effective immigration control so that removal was proportionate. It might reasonably be thought that to delay
for
4 ˝ years before making a decision on an asylum claim and then to delay
for
a further 12 months before deciding a subsequent application could not be regarded as maintaining effective immigration control.
The
letter went on to certify in accordance with
s
.96(1)
of the
Nationality, Immigration and Asylum Act
2002
that
the
application to which
the
present decision related relied on a matter which could have been raised on
the
appeal to
the
adjudicator and so, in
the
absence
of
any satisfactory reason
for the
matter not having been raised in that appeal, there was no right
of
appeal.
The
letter also stated, having asserted that there would be no breach
of
Article 8,:-
"Further to this there is no reason why your client cannot return to Afghanistan in order to apply
for the
correct entry clearance/work permit, given your client'
s
keenness to work and set up his own business in
the
UK."
I shall return to this in due course.
- In 14 November 2005
the
claimant was detained
for the
purpose
of
removal. He managed to contact
the
solicitors who now represent him and, following representations by them, removal was deferred. By letter
of
25 November, they submitted a statement from
the
lady whom
the
claimant intends to marry together with material confirming
the
relationship.
The
letter included
the
following:-
"Our client'
s
girlfriend is a British citizen
of
Pakistani extraction and we would ask you to deal with this matter with
the
utmost
of
confidence because
of the
prevalence
of the
despicable practice known as 'honour killing' within, amongst others,
the
Pakistani community.
- On
2
December 2005
the Home
Office refused
the
application.
The
letter stated that
the
claim was "essentially based on
the
same factors as his previous claim". This was not
the
case inasmuch as reliance was placed on
the
relationship with
the
lady he said he intended to marry. In dealing with that,
the
letter stated:-
"Full consideration has been given to Mr [
S
'
s
] asserted relationship with a British citizen, proof
of
his girlfriend'
s
nationality has not been provided. However, your client has knowingly entered into a relationship in
the
full knowledge that he did not have
the
right to remain here. It is considered that
the
persistence
of
their relationship within
the
UK would, from
the
outset, be precarious. In any case, your client has not provided evidence to support his assertion that he has established family life with his girlfriend, on his own admission they do not live together. I should add that even if family life in
the
UK does exist and removal would interfere with such family life, your client does not have
the
right to ignore legitimate immigration controls or to choose where he wishes to enjoy his private life. This office has considered your claim but has concluded that
the
result
of
Mr [
S
'
s
] removal would be wholly proportionate. Following your client'
s
removal, it will be open to him to make an application
for
entry clearance, which, if successful will allow him to return to
the
UK lawfully as a spouse/fiancé
of
a person settled here."
On
7
December 2005, this claim was lodged and so removal has been deferred.
- On
the
findings
of the
adjudicator, which should be accepted by
the
defendant and which I should apply,
the
claimant was to be regarded as a refugee so long as
the
Taliban were in control in Afghanistan. That means that had
the
application been determined prior to 15 November 2001 (
the
date after which
the
defendant did not normally grant asylum to those fearing persecution by
the
Taliban) he should have been granted indefinite leave to remain (ILR). Although
the
Refugee Convention does not require that asylum be granted
for
any longer than a real risk
of
persecution continues it was then and has until
the
enactment
of s
.83A
of the 2002
Act by
s
.1
of the
2006 Act (which so far as I am aware is not yet in force) been
the
policy
of the
defendant to grant ILR. However, it seems likely that
the
defendant would have refused
the
application since
the
credibility
of the
claimant was not accepted. Accordingly, it would have been necessary
for
an appeal to have been heard and determined in
the
claimant'
s
favour by 15 November 2001 if ILR were to be granted.
- Asylum seekers from Afghanistan had from
January
1995 normally been granted ELR
for
4 years if their claim
for
asylum was refused. This was because
the
impossibility
of
returning anyone compulsorily in safety was recognised. This policy continued until 18 April
2002
, when
the
4 years was reduced to 1 year. From 11 July
2002
, each case was considered on its merits and there was no longer any policy not to remove. In addition, those who had been granted 4 years ELR would, if they applied, normally be granted ILR when
the
4 years expired unless they had committed offences or otherwise shown that they were
of
bad character. It is accepted that
the
claimant had done nothing wrong and so would, if his claim had been dealt with before 18 April
2002
, now have been granted ILR. This means
the
he would now be irremovable if his claim had been dealt with within
2
˝ years
of
his arrival.
- Permission was refused by Davis J on
the
papers. He was not informed in
the
Acknowledgement
of
Service
of the
policy that 4 years ELR would result in ILR. That failure was regrettable, since it was clearly relevant to
the
arguability
of the
claim. Permission was in due course granted by Burton J following an oral hearing on 31 March 2006. He was not persuaded by
the
defendant'
s
argument that
the
claim was out
of
time and Mr Jay Q.C. has rightly not relied on delay since he has accepted that he could not establish a detriment to good administration or prejudice to anyone.
- Mr Gill, Q.C. submits that
the
failure to deal with
the
claimant'
s
application within
2
˝ years deprived him
of
an entitlement to ILR and it would be unfair and an abuse
of
power to deny it to him now. He had a legitimate expectation that his application would be dealt with within a reasonable time and that he would be treated no differently from others who arrived and made claims at
the
same time as he. Further, he submitted that
the
failures made it disproportionate to remove
the
claimant whose rights to private life had accrued under Article 8. Finally, he submitted that
the
decision to certify under
s
.96
of the 2002
Act was wrong since there were good reasons why
the
points about delayed decision making and
the
denial
of the
benefit
of the
policies which should have applied were not raised before
the
adjudicator.
- In July 1998,
the
government issued a White Paper entitled "Fairer, Faster and Firmer – A Modern Approach to Immigration and Asylum". That title has a hollow ring in
the
light
of
subsequent events. In Paragraph 8.
7
, in a chapter headed 'Asylum Procedures', this was said:-
"
The
key to restoring effectiveness to our asylum system and to tackling abuse is swifter determination
of
applications and appeals.
The
Government inherited backlogs
of
over 50,
000
cases awaiting decision and over
20
,
000
queuing
for
an appeal hearing. Some undecided cases date back to 1990 and appeals can take 15 months to list in London. Delays
of
this order send a clear message to abusive applicants that
the
system cannot cope and is ripe
for
exploitation, while those in genuine need
of
protection are condemned to a cruel limbo
of
worry and uncertainty over their future."
Then in 8.9, there was this:-
"Delivering faster decisions is crucial to
the
success
of the
overall strategy.
The
Government is aiming to ensure that by April 2001 most initial decisions will be made within
2
months
of
receipt and that most appeals to adjudicators will be heard within a further 4 months. Both those targets reflect average process times and
the
Government expects that many cases will be dealt with more quickly. But achieving these targets will depend on a number
of
factors, including
the
successful implementation
of
Casework Programme,
the
number
of
asylum applications outstanding which will be affected by changing international circumstances and
the
extent to which applicants and their advisors unnecessarily delay resolution
of
an application or an appeal.
The
Government will therefore keep these targets under review … A faster system with more certain removal at
the
end
of the
process will significantly deter abuse."
Finally, with reference to dealing with
the
backlog which had been inherited, it was said that measures would be adopted which were both firm and fair. It was recognised that
the
consequences
of
very long delays, which were not
the
fault
of the
applicant, could not fairly be ignored in terms
of
his or her ties in this country. Paragraph 8.28 concluded:-
"
The
Government will therefore adopt an approach in which
the
effects
of
long delays in reaching a decision will be taken into account and weighed with other considerations, but only in due proportion and in appropriate cases."
Chapter 8 concluded with this sentence (Paragraph 8.32):-
"Above all
the
approach will look to
the
future, enabling resources to be kept focused on ensuring
the
delivery
of
an asylum system which is both swift and fair."
The
aims and expectations were not met. However,
the
policy was not sufficiently positive to give an individual who suffered from delay any particular expectation.
The
excuse
for the
failure to deal with applications swiftly has been
the
large numbers, which exceeded
70
,
000 for
each year between 1999 and
2002
.
The
average ages
of
cases dealt with were, according to statistics put before me by Dr McLean
of the
Asylum Policy Unit in IND, 35 months in 1999, 18 months in
2000
, 13 months in 2001 and
7
months in
2002
. In
the
subsequent 3 years they were about 12 months. It is to be noted that these statistics do not show how long it would on average have taken
for
an application made in a particular year to be dealt with but it is evident that 4 years is excessive.
- On 1
January
2001 what is called a Public Service Agreement (PSA) target was introduced requiring that 60%
of
applications lodged on or after 1
January
2001 should be decided within 60 days. A PSA is an agreement between
the
Treasury and a Government department which calculates spending priorities. During 2001, only 40% was achieved and so any case which could not be decided within 60 days would be set aside and put on hold. There were what Dr McLean describes as supplementary targets
for
older cases, but these were subordinate to
the
objective
of
meeting
the
PSA target. Thus
the
old cases were shelved while
the
PSA targets were sought to be achieved. It is difficult to see how this could be said to be fair since it clearly worked to
the
detriment
of
such as
the
claimant (and there were no doubt many in his position) whose application had not been dealt with by 1
January
2001. There is a suspicion that those such as
the
claimant were sacrificed so that it could be said that
the
Government was meeting a target
of
dealing with at least 60%
of
applications within
2
months. And it seemed particularly unfair to him when he saw his cousin and others who had entered at
the
same time as him with similar claims being granted ELR and subsequently ILR.
- When
the
claimant arrived in
the
U.K., he was a refugee. Nevertheless,
the
U.K. was entitled to consider whether he fulfilled
the
necessary criteria and inevitably some time would have to elapse before that decision was reached. If it was adverse, further time would elapse while an appeal was brought. Each decision maker would have to consider whether at
the
time
of the
decision he was a refugee or entitled to protection under
the
European Convention on Human Rights.
The
Conventions do not give protection to those who do not require it and
the
Government'
s
policy to grant an unnecessary ILR to refugees does not mean that those who are subsequently found to have been refugees on arrival but not when
the
decision on their applications was reached must nonetheless be granted ILR. That would be contrary to
the
principle in Ravichandran v
Secretary of State for the Home
Department [1996] Imm AR 97 which has now been given statutory force.
- There can be no doubt that
the
law requires public authorities to be held to their promises whether they relate to procedure or to substance. A failure to do so will be regarded as an abuse because unfair or, as Laws LJ has defined it in Abdi v
Secretary of State for the Home
Department [2005] EWCA Civ 1363 at Paragraph 68, it is a requirement
of
good administration, by which public bodies ought to deal straightforwardly and consistently with
the
public. He went on:-
"… there is every reason to articulate
the
limits
of
this requirement – to describe what may count as good reason to depart from it – as we have come to articulate
the
limits
of
other constitutional principles overtly found in
the
ECHR. Accordingly, a public body'
s
promise or practice as to future conduct may only be denied, and thus
the
standard I have expressed may only be departed from in circumstances where to do so is
the
public body'
s
legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (
of
which
the
court is
the
judge, or
the
last judge) having regard to a legitimate aim pursued by
the
public body in
the
public interest.
The
principle that good administration requires public authorities to be held to their promises would be undermined if
the
law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in
the
circumstances."
- Laws LJ goes on in paragraphs 69 and
70
to set out various relevant factors that bear on proportionality and to identify what lay behind some
of the
relevant cases, including A-G
of
Hong Kong v Ng Yuen Shin [1983] 2AC 629,
R
v Department
of
Education and Science ex p. Begbie [
2000
] 1 W.L.
R
. 1113,
R
v North East Devon Health Authority ex p. Coughlan [2001] QB 213.
- It is unnecessary to go into further detail since there was in my judgment no unambiguous promise that applications would be dealt with in any particular timescale.
The
White Paper was careful not to make any unequivocal promises and it would be rare
for
aims expressed by politicians or government to constitute promises capable
of
being regarded as legitimate expectations. While it may be said with some force that there ought to have been a recognition that asylum claims were likely to remain at a high level and that insufficient resources were put in place to deal with those claims, it would be difficult if not impossible
for
a judge to decide that what was done was unjustifiable having regard to all
the
competing claims on
the
public purse.
- It is not however
of
crucial importance to determine whether there was a promise. There is a wider principle that there must be fair treatment
of
any individual by a public authority and
the
court can give redress if unfairness in any given set
of
circumstances can be said to have amounted to an abuse
of
power. It was this that led
the
Court
of
Appeal in
R
(Rashid) v
Secretary of State for the Home
Department [2005] EWCA Civ 744 to decide that Mr Rashid was entitled to be regarded as a refugee and to ILR. This was because
the Secretary of State
had failed to apply a policy or a practice which was in force when
the
refusal
of
asylum was made. No explanation was given
for
that failure and
the
Court inferred that it resulted from, as Dyson LJ put it at paragraph 53, "flagrant and prolonged incompetence". An explanation was given to me in
R
(A), (H) and (AH) v
Secretary of State for the Home
Department 2006
EWHC
526 (
Admin
). I took
the
view that, far from excusing what had happened,
the
explanation confirmed that there had been flagrant and prolonged incompetence. This led me to decide that
the
claimants must be granted what they should have been granted if
the
policy in question had been applied. I recognised that, having regard to
the
Ravichandran principle, such relief would only rarely be granted.
The
correct approach was indicated by Dyson LJ in Paragraph 50
of
Rashid. He was basing his decision on legitimate expectation, which was relevant in that case but which I regard as unnecessary. However,
the
principle in relation to fairness is
the
same. He said this:-
"
The
nature
of the
decision will, therefore, always be relevant to
the
question whether
the
frustration
of
an expectation is an abuse
of
power.
The
court will not only have regard to whether wide-ranging issues
of
policy are involved, but also whether holding
the
public body to its promise or policy has only limited temporal effect and whether
the
decision has implications
for
a large class
of
persons.
The
degree
of
unfairness is also material. That is why in
R
v Inland Revenue Commissioners ex p. Unilever Plc [1996] STC 681, Simon Brown LJ referred to 'conspicuous unfairness' amounting to an abuse
of
power.
The
more extreme
the
unfairness,
the
more likely it is to be characterised as an abuse
of
power. If
the
frustration
of
a legitimate expectation is made in bad faith, then it is very likely to be regarded as an abuse
of
power and, therefore, unlawful."
The
question therefore is whether
the
delay in
the
circumstances amounted to conspicuous unfairness so as to constitute an abuse
of
power. It is not suggested that there was bad faith in that
the
defendant, knowing that
the
situation in Afghanistan was fluid, deliberately refrained from deciding applications such as this until
the
impossibility
of
removal disappeared.
The
relevant periods
of
delay are just over
2
years before 15 November 2001
for the
grant
of
asylum and almost
2
˝ years
for the
grant
of
4 years ELR.
The
reasons
for the
delay are a material factor because, if those reasons demonstrated that this claimant was being treated unfairly, they might help to show an abuse
of
power. I am not impressed with
the
approach which was adopted because it put those who had made applications before
January
2001 and whose applications had not been determined by then in a worse position. However, I am not in a position to say that that was so obviously and conspicuously unfair as to amount to an abuse
of
power. Indeed, it is difficult to see that delay by itself could, unless it was extreme and arose
for
wholly bad reasons in an individual case, enable a court to say that
the
decision made after
the
delay was unlawful if it deprived
the
person affected
of
some advantage he would have enjoyed if
the
decision had been made timeously. Nor do I accept that
the
decision
of the
A.I.T. in MM (Delay – reasonable period – Akaeke-Strbac) [2005] UKIAT 00163 that in effect it would be unreasonable
for the Home
Office to delay
for
more than 12 months in reaching a decision is
of
universal application. Delays
of
over 12 months may need an explanation, but that explanation may properly amount to no more than that
the
pressure
of
numbers made a greater delay inevitable. In addition, any particular circumstances
of
an individual case must be taken into account. I note, incidentally, in this context that
the
evidence before me in
R
(A), (H) and (AH) v
Secretary of State for the Home
Department showed that by
January 2000 the
backlog
of
undecided asylum applications had exceeded 120,
000
(see paragraph
20
). There was also evidence that there had been a reorganisation in IND to try to deal with
the
volume
of
applications more efficiently (see paragraph 21).
The
case that perhaps comes closest to supporting Mr Gill'
s
contentions is
R
(Mugisha) v
Secretary of State for the Home
Department [2006] INLR 335, a decision
of
Calvert Smith J. That was a case in which a similar policy
of
granting 4 years ELR was applied to those seeking asylum from Rwanda. Mr Mugisha claimed asylum in June
2000
. In June 2001 his claim was rejected because he had failed to attend
for
interview and so
the Secretary of State
based his refusal on what had been put forward by
the
claimant in writing. He did not believe his story.
The
refusal was not served until April
2002
whereupon
the
claimant appealed.
The
claimant'
s
solicitors pointed out that as
the
claimant was Rwandan,
the
decision that he should be removed was contrary to
the
practice to grant 4 years ELR because return to Rwanda was not possible. A crucial document, namely an identity card which was in
the
possession
of the Home
Office, was not produced to
the
adjudicator before whom
the
appeal was heard.
The Secretary of State
was not represented and
the
adjudicator was influenced by
the
supposed unreliability
of the
identity card in judging
the
claimant'
s
credibility. He thought he was not a Rwandan but was trying to misuse Rwandan nationality to achieve residence in
the
U.K.
The
adjudicator was misled about
the
existence
of the
4 years ELR policy since he thought it had been withdrawn before
the
adverse decision in 28 August
2002
.
The
I.A.T., who heard an appeal against
the
adjudicator'
s
determination, were also misled as to
the
terms
of
policy, believing that it was not a fixed policy but only a general practice which
the Secretary of State
did not need to follow in
the
exercise
of
his discretion in an individual case. By
the
time
the
appeal was heard in April 2004,
the Secretary of State
accepted that
the
claimant was Rwandan, but by then he could not benefit from
the
policy. In all
the
circumstances, it is not at all surprising that Calvert Smith J decided that there had been conspicuous unfairness.
The
case was one in which
the
Rashid approach was applied. It was not a case in which delay by itself was relied on. It was
the
failure
for
any good reason to apply a policy in force when
the
relevant decision was made and
the
subsequent failures to provide proper information to
the
appellate authorities that led to
the
adverse decision.
- I am not therefore persuaded that
the
claimant is now entitled to ILR. While I have no doubt that with good reason he feels that he has been treated unfairly, that is not sufficient in
the
circumstances
of
this case in
the
light
of the
principles laid down by
the
Court
of
Appeal to entitle him to be put in
the
position he would have been in if his application had been dealt with before
the
change
of
policy.
- But that is not
the
end
of
this case.
The
claimant has relied on
the
full 4 ˝ years delay to found an argument that to return him would breach his rights under Article 8. There have been a number
of
decisions
of the
Court
of
Appeal which consider
the
effect
of
delay in relation to claims under Article 8 and in particular whether it would be disproportionate to remove an individual who, because
of the
lapse
of
time, had established a private or a family life in
the
U.K. while awaiting
the Secretary of State
'
s
decision.
The
latest
of
these is HB & Others v
Secretary of State for the Home
Department [2006] EWCA Civ 1713 in which judgment was delivered on 14 December 2006. When I reserved judgment, I was informed that this judgment was expected and I said that either side could, if they wished, put before me any submissions in writing before
the
end
of
term. Neither did so. At paragraph 24, Buxton LJ, who gave
the
only reasoned judgment, helpfully summarised
the
law in relation to delay. He said this:-
"I draw
the
following conclusions from
the
authorities, binding on us, discussed above.
i) Delay in dealing with an application may, increasing
the
time that
the
claimant spends in this country, increase his ability to demonstrate family or private life bringing him within Article 8(1). That however is a question
of
fact, and to be treated as such.
ii)
The
application to an Article 8 case
of
immigration policy will usually suffice without more to meet
the
requirements
of
Article 8(
2
) [Razgar]. Cases where
the
demands
of
immigration policy are not conclusive will be truly exceptional [Huang].
iii) Where delay is relied on as a reason
for
not applying immigration policy, a distinction must be made between persons who have some potential right under immigration policy to be in this country (
for
instance, under marriage policy, as in Shala and Akaeke); and persons who have no such right.
iv) In
the
former case, where it is sought to apply burdensome procedural rules to
the
consideration
of the
applicant'
s
case, it may be inequitable in extreme cases,
of
national disgrace or
of the
system having broken down [Akaeke], to enforce those procedural rules [Shala; Akaeke]
v) Where
the
applicant has no potential rights under specifically immigration law, and therefore has to rely on his rights under Article 8(1), delay in dealing with a previous claim
for
asylum will be a relevant factor under Article 8(
2
), but it must have very substantial effects if it is to influence
the
outcome [Strbac at p25]
vi)
The
mere fact that delay has caused an applicant who now has no potential rights under immigration law to miss
the
benefit
of
a hypothetical hearing
of
an asylum claim that would have resulted in his obtaining ELR does not in itself affect
the
determination
of
a subsequent Article 8 claim [Strbac, at p32]
vii) And further, it is not clear that
the
court in Strbac thought that
the
failure to obtain ELR on asylum grounds because
of
failure to make a timely decision could ever be relevant to a decision on
the
substance, as opposed to
the
procedure,
of
a subsequent Article 8 claim. Certainly, there is no reason in logic why that fact alone should affect
the
Article 8 claim. On this dilemma, see further p6 above.
viii) Arguments based on
the
breakdown
of
immigration control or
of
failure to apply
the
system properly are likely only to be
of
relevance if
the
system in question is that which
the Secretary of State
seeks to rely on in
the
present proceedings:
for
instance, where a procedural rule
of the
system is sought to be enforced against
the
applicant [Akaeke].
The
same arguments do not follow where appeal is made in Article 8 proceedings to earlier failures in operating
the
asylum system.
ix) Decisions on proportionality made by Tribunals should not, in
the
absence
of
errors
of
principle, be interfered with by an appellate court [Akaeke]."
- I should refer briefly to
the
cases which are referred to in this summary.
The
first is Shala v
Secretary of State for the Home
Department [2003] INLR 349. In Strbac v
Secretary of State for the Home
Department [2005] EWCA Civ 848 that case was said to be a decision on its own facts which established no particular, free standing principle. Nevertheless, its facts are
of
some interest in
the
context
of the
instant case. Mr Shala, an ethnic Albanian, came to this country in June 1997 from Kosovo. At that time and until mid 1999 there was a policy to grant at least ELR because
of the
persecution by
the
Serb authorities
of
ethnic Albanians. In October 1998, he met and began to cohabit with a woman who was a Czech national and an asylum seeker who was granted refugee status in May
2000
. It was not until July 2001 that Mr Shala'
s
claim was determined.
The
question before
the
court was whether to require him to go to Kosovo and apply from there
for
leave to enter as
the
spouse
of
someone settled here was disproportionate.
The
court decided that it was disproportionate. If he had had his claim dealt with reasonably efficiently, he would have been able to apply
for
leave to remain on
the
basis
of
marriage from within
the
country. Keene LJ at paragraph 15 on page 355 made
the
point that
the
appellant had a legitimate claim to enter at
the
time when on any reasonable basis his claim should have been determined. This was because he was then fleeing persecution. Schiemann LJ put it thus at paragraphs 24 to
26
on p.357:-
"[24].
The
present case, however, is distinguishable from
the
mass
of
cases because
the
applicant came here at a time and in circumstances where his failure to apply
for
a visa was accepted by
the Home
Office as wholly explicable and where he applied
for
permission on
the
day he arrived from Kosovo, which was in
the
middle
of
a dreadful civil war. He could not have done more. In short he was, at
the
time that he came, a meritorious applicant
for
permission to remain here, at any rate
for
a while. It was not until more than 4 years later that
the Home
Office, after chivvying by his solicitors, got round to arranging an interview to test
the
genuiness
of
his asylum application. Automatically to apply to a person in his position a policy designed to discourage both meritorious and unmeritorious applicants from jumping
the
queue is a wrong approach to
the
difficult problem
of
deciding whether
the
interference with a person'
s
rights under Article 8 is necessary in a democratic society.
[25]. As I understand it, had his application been dealt with in
the
appropriate timescale as it ought to have been, then his application
for
permission to stay would in all probability have been granted.
The
fact that it was not was not his fault. Had that been granted, a further application to remain with his wife would also in all probability have been granted. It was during this period that
the
family relationship was established. These factors should have been considered by
the
decision-taker as well as
the
interests
of
his wife and
the
two boys who have now found a father.
[
26
].
The
difficulties in a case such as
the
present arise from
the
fact that
the
relevant procedures were designed to take a few months and yet have in practice, through no fault
of the
applicant, taken
the Home
Office several years. In such circumstances one must be careful before one allows policies designed
for
procedures operating in different conditions to become automatically determinative
of the
fate
of
a family."
- In Strbac v
Secretary of State for the Home Department,
a Serb from Croatia, came to
the
U.K. on 28
January
1999 and claimed asylum. His claim was decided adversely within about 10 months but
for
some reason
the
decision was not served on him until a year or so later. In paragraph 25, Laws LJ, who gave
the
only reasoned judgment, said:-
"It is
of
course right that substantial delay in
the
determination
of
an application may, at least if it proves to be substantial and to have brought consequences in its wake beyond
the
bare passage
of
time, be a factor which
the
decision-maker is obliged to consider. But as a proposition that does no more, with respect, than identify an actual or potential relevant factor. (And it is a factor which, I apprehend, must have very substantial effects if it is to drive a decision in an applicant'
s
favour: see Anufrijeva v
Secretary of State for the Home
Department [2003] EWCA Civ 1406 Paragraphs 46-47). This is a far cry from [counsel
for the
appellant'
s
] very different endeavour, which was to glean from Shala a distinct principle: a principle which, with some qualifications, came close to a rule to
the
effect that an applicant whose claim to enter or remain (a) is decided after
the
expiry
of
a reasonable time and (b) would probably have met with success, or a greater chance
of
success, if it had been decided within a reasonable time, should, if he has meantime established a family life here, be treated as if it had been so decided …"
Mr Strbac had come with his wife and family from Croatia and so there was no reason why
the
whole family should not return together to Croatia. Thus he had not been deprived
of
any procedural advantage. Even if
the
claim, had it been decided earlier, would certainly have met with success,
the
principle remains
the
same. That in itself would not suffice to establish
the
exceptional circumstances which an applicant would need to establish to justify being allowed to remain.
- In Akaeke v
Secretary of State for the Home
Department [2005] INLR 575
the
delay by
the Home
Office was described as a public disgrace.
The
claimant had arrived in
the
U.K. no later than November 1994. Her asylum claim was rejected in December 1995. In February 1996 she married a British citizen. Her claim to be allowed to stay on
the
basis
of
that marriage was refused in September 1996 as were various other attempts to persuade
the Secretary of State
to allow her to remain. Eventually, in February 1999 she made a further claim to remain on
the
basis
of
her marriage and sought to rely on Article 8
of the
European Convention on Human Rights, although
the
Human Rights Act 1998 was not then in force. There then followed a delay
of
over 3 years in dealing with that claim.
- Mrs Akaeke had clearly been able to stay in this country unlawfully over 10 years. However, it was accepted that
the
marriage was genuine and subsisting and so
the
only issue was whether she should return to Nigeria and make an application to enter on
the
basis
of
her marriage from there. Akaeke does not decide that culpable delay by itself will mean that it will be disproportionate to return a person who has established a private or family life here.
The
claimant succeeded because
of the
added factor
of the
need to apply from abroad. Since this was
the
only reason
for
removal,
the
delay could and in
the
circumstances did render it disproportionate to require that that procedural step be taken.
- It follows in my judgment that if this claim were based on
the
delay alone it must fail. But there is an added factor here.
The
refusal letter
of
3 November 2005 stated:-
"Further to this there is no reason why your client cannot return to Afghanistan in order to apply
for the
correct entry clearance/work permit, given your client'
s
keenness to work and set up his own business in
the
U.K."
I have already set out
the
relevant paragraph
of the
refusal letter
of
5 December 2005 following
the
"asserted relationship" with
the
lady he intends to marry.
The
last sentence refers to
the
possibility
of
applying
for
an entry clearance.
- This claim thus falls fairly and squarely within
the
principle referred to in paragraph 24iii) and viii)
of
Buxton LJ'
s
judgment in HB and Others. There is, however, an additional and, it seems to me, a determinative factor in
the
circumstances
of
this case. There is no possibility
of
obtaining an entry clearance in Afghanistan.
The
British Embassy there has no facilities
for
issuing such clearances.
The
best that it can offer is to apply via
the
High Commission in New Delhi or possibly Islamabad or
the
embassy in Dubai. This must have been known to
the Secretary of State
in November and December 2005. There are thus very serious and possibly insurmountable obstacles to obtaining an entry clearance following return to Afghanistan. This coupled with
the
excessive delay in dealing with
the
claimant'
s
application renders
the
decision to remove unlawful. It does not mean that
the
claimant is now entitled to ILR. But it does mean that he should be allowed to apply
for the
necessary leave based on his proposed marriage and his plans to set up business or to work here while remaining in
the
U.K.
- In addition, I am satisfied that
the
certification under
s
.96(1) was wrong.
The
defendant rejected
the
asserted relationship on
the
facts. However, those facts have not been properly investigated and there are arguably valid reasons why
the
relationship was not put forward to
the
adjudicator. If
the
claim is to be refused, there should be a right
of
appeal.
- I have no doubt that this claimant has not been treated fairly and that there has been a failure to deal with his claim efficiently. A delay
of
4 ˝ years is on any view excessive. People cannot be expected to put their lives on hold, particularly if they are young.
The
claimant was when he arrived in genuine need
of
protection and he has been condemned to a cruel limbo
of
worry and uncertainty over his future. He has now been here
for
over
7
years and on any view has established himself as a good worker and, it seems, a model citizen. He has seen his cousin and others granted ILR which has been denied to him because his claim was not dealt with earlier.
- I can only deal with errors
of
law. But, should a refusal be maintained, an immigration judge can consider
the
facts and exercise his discretion accordingly. I would be surprised if
the Secretary of State
in
the
circumstances
of
this case maintains his refusal and even more surprised if a refusal is upheld on appeal.
The
removal directions will be quashed. In addition,
the
decision to certify under
s
.96(1) will be quashed.
The
defendant must reconsider
the
claim in
the
light
of this judgment.