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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rudi & Anor v Secretary of State for the Home Department  EWHC 60 (Admin) (26 January 2007)
Cite as:  EWHC 60 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| MIFAIL RUDI
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Jonathan Adler (instructed by Gupta & Partners) for Mr Ibrahimi
Mr John-Paul Waite (instructed by the Treasury Solicitor) for the Secretary of State for the Home Department
Crown Copyright ©
Ouseley J :
The Family ILR Exercise
"Prior to the introduction of tough new rules to build on the tremendous progress already made in halving the number of asylum seekers entering Britain this year, longstanding and highly expensive family asylum claims will be eligible for leave to remain, Home Secretary David Blunkett announced today.
Up to fifteen thousand families who sought asylum in the UK more than three years ago, the majority of whom are being supported by the taxpayer, will be considered for permission to live and work here.
The move comes ahead of the final stages of the Government's reforms of the asylum system which will ensure it is not open to delays and abuse in the future."
"However, the legacy of the historic inadequacies of the system is still with us. This does not manifest itself only in statistics but in the lives of real families in our communities. As the Chief Inspector of Schools said earlier this week, children from asylum-seeking families are especially motivated and doing well in schools. MPs from all sides appeal to me for such families to be allowed to stay in the UK every week.
"Granting this group indefinite leave to remain and enabling them to work is the most cost-effective way of dealing with the situation and will save taxpayer's money on support and legal aid. These are difficult decisions but I do not believe it is the best use of taxpayer's money to take these expensive longstanding individual appeals through the courts. I want to ensure our relentless focus is on steadily increasing the proportion of failed asylum seekers removed from now on."
Conclusions on the Family Exercise
Mr Ibrahimi's fresh claim
"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 § 25].
vi) The mere fact that delay has caused an appellant 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 § 32].
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 the fact alone should affect the article 8 claim. On this dilemma, see further § 6 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 the proportionality made by tribunals should not, in the absence of errors of principle, be interfered with by an appellate court [Akaeke]."
Conclusions on the fresh claim