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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 >> Shah, R (on the application of) v Secretary of State for the Home Department  EWHC 2192 (Admin) (04 July 2014)
Cite as:  EWHC 2192 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
| The Queen on the application of Syed Shah
|- and -
|Secretary of State for the Home Department
Miss Katherine Olley (instructed by Treasury Solicitors) for the Defendant
Hearing date: 19 June 2014
Crown Copyright ©
Clare Moulder (Sitting as a Deputy High Court Judge) :
i) Does section 55 of the Borders, Citizenship and Immigration Act 2009 and/or paragraph 2.20 of the "Every Child Matters" policy require that the defendant expedite the processing of immigration applications affecting children in the UK?
ii) If so, has the defendant complied with that duty?
iii) In any event is the delay in deciding the claimant's application Wednesbury unreasonable, or conspicuously unfair?
iv) Is the delay contrary to article 8ECHR?
"Our client instructs that he wishes to remain in the UK with his child and remain as his sole carer. The family courts have exercised [sic] some concern as to our client's immigration status in the UK and it remains apparent that if it were not for his immigration status, our client would be the most appropriate carer for [R]."
"It is submitted that the family court would be assisted by a decision in regards to our client's immigration matter, and that the delay of issuing the same would adversely affect the outcome of the family proceedings to our client's detriment.
We wish to emphasise that our client is suffering an extreme detriment from the unresolved issues regarding his immigration status, as this is having an adverse effect on the outcome of the family proceedings."
Does section 55 of the Borders, Citizenship and Immigration Act 2009 and/or paragraph 2.20 of the "Every Child Matters" policy require that the defendant expedite the processing of immigration applications affecting children in the UK? Has the defendant complied with that duty?
"55 Duty regarding the welfare of children
(1)The Secretary of State must make arrangements for ensuring that—
(a) The functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b)any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2)The functions referred to in subsection (1) are—
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(3)A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)."
"2.6 The UK Border Agency acknowledges the status and importance of the following: the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the EU Reception Conditions Directive, the Council of Europe Convention on Action Against Trafficking in Human Beings, and the UN Convention on the Rights of the Child. The UK Border Agency must fulfil the requirements of these instruments in relation to children whilst exercising its functions as expressed in UK domestic legislation and policies. [Emphasis added]
2.7 The UK Border Agency must also act according to the following principles:
In accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children
Children should have their applications dealt with in a timely way and that minimises the uncertainty that they may experience. [Emphasis added]
2.20 There should also be recognition that children cannot put on hold their growth or personal development until a potentially lengthy application process is resolved. Every effort must therefore be made to achieve timely decisions for them." [Emphasis added]"
"For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3.1 of the UNCRC: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law."
"A. Legal analysis of article 3, paragraph 1
1. "In all actions concerning children."
19. The legal duty applies to all decisions and actions that directly or indirectly affect children….. Therefore "concerning" must be understood in a very broad sense.
20. Indeed, all actions taken by a state affect children in one way or another. This does not mean that every action taken by the state needs to incorporate a full and formal process of assessing and determining the best interests of the child. However, where a decision will have a major impact on a child or children, a greater level of protection and detailed procedures to consider their best interests is appropriate.
Thus, in relation to measures that are not directly aimed at the child or children, the term "concerning" would need to be clarified in the light of the circumstances of each case in order to be able to appreciate the impact of the action on the child or children."
".. In relation to measures that are not directly aimed at the child or children, the term "concerning" would need to be clarified in the light of the circumstances of each case, in order to be able to appreciate the impact of the action on the child or children".
"children should have their applications dealt with in a timely way."
This paragraph is clearly referring, in my view, to child applicants.
"Every effort must therefore be made to achieve timely decisions for them."
"This guidance cannot cover all the different situations in which the UK Border Agency comes into contact with children. Staff need to be ready to use their judgment in how to apply the duty in particular situations and to refer to the detailed operational guidance which applies to their specific area of work. In general, staff should seek to be as responsive as they reasonably can be to the needs of the children with whom they deal, whilst still carrying out their core functions."
"It may be helpful to set out here, by way of example, some of the key policy commitments which apply at different stages of the process…."
It then deals with various stages of arrival and removal, including detention.
i) the Secretary of State has accepted, pursuant to her obligations under section 55, that there is a need to deal with child applicants in a "timely manner" which minimises the uncertainty that they may experience and in recognition of the fact that children cannot put on hold their growth or personal development until a potentially lengthy application process is resolved;
ii) where the child is a British citizen there is no uncertainty in the sense of the prospect of forced removal; however, the precarious immigration status of a parent may well impact the child, not only emotionally, but also in relation to the parent's ability to work and therefore provide financially for the child;
iii) "timely" in my view is not the same as "expedite" in so far as the latter term suggests a need to hasten or prioritise all child applications. The term "timely" rather means that applications must be dealt with in a time frame which is appropriate to the case. In other words, it requires a case specific approach;
iv) the defendant currently treats all applications including applications from children in the order in which they are received; this clearly precludes a case specific approach as the defendant does not seek to assess the need for a particular timeframe for child applicants;
v) the obligation under section 55 extends to children in the UK of an adult applicant and therefore in order to discharge her duty under section 55, the Secretary of State should put in place arrangements to safeguard the welfare of such children. The precise arrangements are matter for the Secretary of State. However, currently no such arrangements would appear to be in place and the Secretary of State is therefore in breach of her duties under section 55 in regards to this category of children.
Is the delay in deciding the claimant's application Wednesbury unreasonable, or conspicuously unfair?
"related to an initial claim to asylum. But, even so, I do not think that 12 months should be regarded as any sort of benchmark. No doubt, delays of 12 months or more in dealing with an initial claim to asylum may well need an explanation, but, provided the approach of the defendant was based on a policy which was fair and applied consistently, such delays could not be regarded as unlawful"
and at paragraph 30:
"it follows from this judgement that claims such as these based on delay are unlikely, save in very exceptional circumstances, to succeed and are likely to be regarded as unarguable. It is only if the delay is so excessive as to be regarded as manifestly unreasonable and to fall outside any proper application of the policy, or if the claimant is suffering some particular detriment which the Home Office has failed to alleviate that a claim might be entertained by the court." [Emphasis added]
"in April 2012 our client instructed us that he had now separated from [his wife] and that he has now put himself forward as the sole carer for[R] in the care proceedings. We are instructed that [his wife] has also put herself forward as the sole carer for [R] and that the local authority are also assessing [R's] maternal grandparents as alternative carers for [R]….
removing our client from the UK would have extremely adverse consequences for the son, who remains in foster care at present. We further submit that a failure to grant our client with leave to remain would result in his family proceedings being dealt with in an unjust manner and the best interests of the child being adversely affected."
"[the claimant] remains an overstayer with no recourse to public funds. He has not to date (although requested several times) provided documentation from the Home Office giving information about his current situation or evidence of when it is likely to be concluded."
At paragraph 11.1:
"[the claimant] is clearly not in a position to care for [R] independently given the uncertainty regarding his immigration situation. It is unclear when his situation will change."
"On the 21 June 2011 [the claimant] requested that UKBA reconsider the decision. This remains outstanding to date; I am unable to advise on a timescale or an outcome as each case is considered on its own merits.
Reconsideration requests are not a barrier to removal and the applicant(s) currently have no legal basis to be in the UK. Although some reconsiderations have previously been considered on an exceptional basis or have been considered as part of enforcement decisions, the UK border agency currently has no legal basis under which to reconsider decisions. The applicant should now make arrangements to leave the UK or regularise their stay in another capacity.
I hope this information proves useful to the court."
"currently experiencing lengthy delays in processing reconsiderations due to the high volume of requests of this nature UKBA have received over the last 12 months.
I would like to take this opportunity to assure you that every effort will be made to consider this request without unnecessary delay, however, it is with regret that we are unable to provide you with a specific timescale at this stage."
"the grant of refugee status following the IAT's determination ought in this case to have been a simple administrative tasks. There was nothing in the circumstances of the case to require any substantial exercise of judgement. The discussion at the hearing on 8 to January shows that the grant was expected to follow as a matter of course."
"[the claimant] continues to have an arduous and difficult relationship with [his wife] and maternal family and is of the view that he has not contributed to this. There are areas in his parenting identified in this report that need addressing for him to be able to fully meet[R's] needs. In addition to this [the claimant's] current circumstances and relationship with [his wife] and maternal family. I am not of the view that it is likely that these issues can be addressed within [R's] timescale. Therefore I am unable to recommend that [the claimant] be considered as a long-term carer for [R]."
Delay contrary to Article 8
"where the complaint is that there has been culpable delay in the administrative processes necessary to determine and to give effect to an article 8 rights, the approach of both the Strasbourg court and the commission has been not to find an infringement of article 8, unless substantial prejudice has been caused to the applicant. In cases involving custody of children, procedural delay has been held to amount to a breach of article 8 because of the prejudice such delay can have on the ultimate decision-thus in H v United Kingdom (1987) 10 EHRR 95, the court held, at p112, 89, article 8 infringed by delay in the conduct of access and adoption proceedings because the proceedings "lay within an area in which procedural delay may lead to a de facto determination of the matter at issue", which was precisely what had occurred….."
Damages under Article 8
i) There is a duty on the defendant under section 55 of the Borders, Citizenship and Immigration Act 2009 to make arrangements to deal with applications which concern children in the UK in a way which safeguards and promotes the welfare of children and this duty is not confined to child applicants.
ii) The policy "Every Child Matters" does not as a matter of construction extend to applications from adult applicants with (non-applicant) children in the UK. There was therefore no breach of policy in this case but there was a failure to make arrangements pursuant to the duty in section 55.
iii) The delay in dealing with the application for reconsideration did not amount to an unreasonable delay at common law as the claimant failed to establish on the evidence that he suffered a particular detriment which the Home Office has failed to alleviate.
iv) There was no breach of the claimant's article 8 rights as a result of the delay on the basis that I have found that the claimant has not established that the defendant's delay caused him substantial prejudice and accordingly there can be no entitlement to damages under section 8 of the Human Rights Act 1998.