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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Navaratnam v Secretary of State for the Home Department  EWHC 2383 (QB) (31 July 2013)
Cite as:  EWHC 2383 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| RAJAN NAVARATNAM
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Andrew Deakin (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 10th and 11th July 2013
Crown Copyright ©
The Hon Mr Justice Burnett:
"The United Kingdom authorities provided information on 14 October 2008, confirming that the removal directions would not be applied to the applicant. The applicant was granted six months leave to remain on a discretionary basis."
"Mr Navaratnam is however a registered sex offender and falls to be excluded from a grant of Humanitarian Protection In such circumstances, policy recommends a grant of six months Discretionary Leave. In granting such leave, Mr Navaratnam's case will be subject to active review every six months. If circumstances in Sri Lanka later change to the effect that Mr Navaratnam would no longer be a risk on return, voluntary departure or enforced removal can be pursued."
i) The delay in granting leave after the decision of the Strasbourg Court was unlawful and resulted in financial loss to the claimant;
ii) It was irrational to consider the question of leave in the light of developing conditions in Sri Lanka. In any event, the decision of the Strasbourg Court in EG v. United Kingdom (App. No. 41178/08) given on 31 May 2011 suggested that nothing had changed;
iii) The delay in considering the case under the legacy was also unlawful and it should have been prioritised because the claimant's case had been seriously mishandled;
iv) There was no lawful justification for failing to make a decision, since the claimant's case did not fall within any category identified by UKBA as being unresolved.
"Mandatory order to the defendant to give effect to the ECHR determination in NA v UK and grant the claimant refugee status without further delay."
In short, it was suggested that the Secretary of State had 'failed to give effect' to the Strasbourg judgment. A series of authorities was relied upon which decided that the Secretary of State is obliged to give effect to an appellate decision within the Tribunal structure within a reasonable time, unless circumstances have changed.
Unfairness amounting to an abuse of power
"Unfairness amounting to an abuse of power as envisaged in Preston and the other Revenue cases is unlawful not because it involves conduct such as would offend some equivalent private law principle, not principally indeed because it breaches a legitimate expectation that some different substantive decision will be taken, but rather because it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power."
"Mr Rabinder Singh defines it as unfairness which is easy to see and 'leaps up from the page'."
Mr Singh was leading counsel for Mr Rashid whose formulation was cited with approval.
" the rule of law requires that effect should be loyally given to the decisions of legally-constituted tribunals in accordance with what is decided."
The context of that observation was the decision of a Mental Health Tribunal to direct the discharge of a patient. Similarly, the line of authority relating to the immigration appeals system (R v. Secretary of State for the Home Department ex parte Mersin  INLR 511; R (Mambakasa) v. Secretary of State for the Home Department  EWHC 319 (Admin); R (R Algeria) v. Secretary of State for the Home Department  EWHC 3513 (Admin)) are concerned with the general obligation of the Secretary of State to abide by the decisions of the appellate immigration tribunals, and to do so reasonably promptly.
The Legacy Scheme