COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE COLLINS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
MR JUSTICE LIGHTMAN
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Manjit Gill QC & Basharat Ali (instructed by Messrs. Aman Solicitors Advocates) for the Respondent
Hearing date: Monday 12th June, 2006
Crown Copyright ©
Lord Justice Carnwath :
"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."
"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."
"I have discussed supporting his case in the past but he has said he did not want people to think that he was going out with me to get a visa and therefore refused to accept this support. I and his friends have now persuaded him to allow me to support his application. I shall be divorcing my husband [I have been involved in an unhappy marriage] and we shall marry after that."
"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."
Dealing with the backlog
"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…." (para 8.9)
"In dealing with the backlog of cases it has inherited, the Government will adopt measures which are both firm and fair as well as promoting a faster process… 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." (para 8.28)
The last sentence was further explained in the next paragraph. For the oldest cases, from before July 1993, the delay would normally be considered "so serious as to justify, as a matter of fairness, the grant of indefinite leave to remain". For those dating from 1993 to 1995, specific compassionate circumstances might justify the same treatment. For those dating from after 1995, the delay would not normally be a material factor.
"Priorities as regards business planning had been set in terms of reducing backlogs of outstanding applications and delivering timely, high quality decisions, rather than in terms of specific groups of cases or types of application, other than those set out in fast track processes. On 1 January 2001 a Public Service Agreement (PSA) target was introduced requiring that 60% of new asylum applications resulted in a decision and service thereof within 61 days of the application being made. New applications were defined as those lodged on or after 1 January 2001 and therefore did not include the asylum application made by Mr. S. (PSA targets are written in HM Treasury's Spending White Paper and are agreements between HMT and Government Departments. They aim to articulate in clear, specific and measurable terms the top level national priorities for the period of the spending review. PSAs are a clear commitment to the public on what they can expect for their money and each agreement sets out explicitly which Minister is accountable for delivering the target underpinning that commitment.) In late 2001 and early 2002 levels of performance were approximately 40%, at which point a number of changes were introduced to increase productivity, including the concentration of case working capacity on new asylum applications the subject of the PSA target so that any case that could not be decided and served by day 61 would be put aside until such time as resources allowed. There were, however, supplementary targets relating to processing times for older cases, but these were subordinate to the objective of meeting the PSA target. (Putting a case "on hold" means not sending the case for interview/decision until such time as instructions are issued by senior managers to begin processing cases.)"
"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."
The issues in the present case
i) The relevance of delay on its own;
ii) Abuse of power;
iii) The Article 8 case.
"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…
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]." (para 24)
Abuse of power
"The question therefore is whether the delay in the circumstances amounted to conspicuous unfairness so as to constitute 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…"
He noted also from evidence produced by the Home Office that by January 2000 the backlog of undecided asylum applications had exceeded 120,000, and that there had been a reorganisation in IND to try to deal with the volume of applications more efficiently.
"… a failure to follow the terms of the previous (but now redundant) policy that would, while Saddam Hussein's regime was still in power, have resulted in the grant of refugee status to Mr Rashid…"
"It seems to me that in the circumstances of this case, such decisions connote such a degree of unfairness as to amount to a misuse – a word I rather prefer to "abuse" – of policy as to require the intervention of the court."
Having referred to authorities, he added:
"It will be clear from what I have already said that I take the view that the combination of (a) the unwarranted and unjustified failure on the part of the Secretary of State to apply his policy to the claimant at the time of his original asylum application when, had it been so applied, he would have been granted refugee status, and (b) the differentiation in treatment and consequent outcome accorded to Mr M and Mr A as compared to the claimant, and (c) the intervening moral detriment occasioned to the claimant, do, when all the factors are taken together, evince such a degree of unfairness as to amount to a misuse of power and to require the court's intervention." (para 65)
"…I consider that the only proper decision that can be reached is to accord the claimant refugee status and the concomitant indefinite leave to remain…"
He granted a declaration to that effect (para 69).
"… a claim of unfairness amounting to an abuse of power, of which legitimate expectation is only one application. The abuse is based on an expectation that a general policy for dealing with asylum applications will be applied and will be applied uniformly. Serious errors of administration have resulted in conspicuous unfairness to the claimant." (para 34)
No "countervailing public interest" had been claimed. He concluded, in agreement with the judge:
"… that the degree of unfairness was such as to amount to an abuse of power requiring the intervention of the court. The persistence of the conduct, and lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field. A state of affairs was permitted to continue for a long time and in relation to a country which at the time would have been expected to be in the forefront of the respondent's deliberations." (para 36)
Unlike the judge, he did not think that the court could confer on the claimant refugee status; that depended on criteria set by the treaty, which no longer applied. However, having found an abuse, the court should intervene to give "such relief as it properly and appropriately can". The Secretary of State had a "residual or general power" to grant indefinite leave under sections 3 and 4 of the Immigration Act 1971. He concluded:
"The court should, in my view, declare that the claimant is entitled to a grant indefinite leave to remain in the United Kingdom. That provides a remedy for the unfairness and is the appropriate response in the circumstances." (para 39)
May LJ simply agreed with the reasoning and conclusion of Pill LJ.
"The stark question that arises on this appeal is which of the two considerations should prevail: justice and fairness which suggest the conclusion that, even if he is not now accorded full refugee status, the claimant should at least not be returned to Iraq, or the Ravichandran principle which suggests that he should be returned to Iraq." (para 44)
Referring to Professor Craig's four-part categorisation of "legitimate expectation" (Craig: Administrative Law 5th Ed p 641), he put the present case in category (ii) "where a general policy choice has been departed from in the circumstances of a particular case". He then cited R(Bibi) v Newham LBC  EWCA CIV 607,  1 WLR 237 para 24, where the court said:
"In all legitimate expectation cases, whether substantive or procedural, three practical questions arise. The first question is to what has the public authority, whether by practice or promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do."
"50… 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.
51. In the present case, to hold the Secretary of State to the policy that was in force between December 2001 and March 2003 in relation to cases that he considered during that period does not of itself raise any wide-ranging issues of policy. I do accept, however, that to hold him to that policy in circumstances where, at the latest stage of the decision-making process, the policy had been withdrawn would infringe the important principle established by Ravichandran.
52. But as against that, in my judgment it is clear that there has been conspicuous unfairness in this case… it is a remarkable feature of this case that, despite repeated requests for clarification and direct instructions from the interviewing officer, the caseworker and the presenting officer who were party to the original and appellate consideration of the claimant's case as to their state of knowledge of the policy, no response has ever been provided; not even after the grant of permission to apply for judicial review, when the Secretary of State had a duty of full and frank disclosure…
53. In the absence of any explanation, I consider that the court is entitled at the very least to infer that there has been flagrant and prolonged incompetence in this case. This is a far cry from the case of a mistake which is short-lived and the reasons for which are fully explained. The unfairness in this case has been aggravated by the fact that, as explained by Pill LJ, the claimant was not treated in the same way as M and A, with whose cases his case had been linked procedurally. Had he been so treated, he would have had the benefit of the policy and been accorded full refugee status."
54. Accordingly, the answer to the second of the three questions identified in Bibi is that the Secretary of State acted unlawfully in choosing to ignore his policy. In so doing, he acted with conspicuous unfairness amounting to an abuse of power.
55. As for what the court should do about it (the third question), I agree with what Pill LJ says at paras 37-40 of his judgment and having nothing to add."
Analysis of Rashid
i) Were the decisions made between 2001 and 2003 legally flawed, because of failure to apply the correct policy?
ii) If so, what was the relevance (if any) of that finding to the legality of, or the court's powers in respect of, the 2004 decisions, made when the policy was no longer in force?
The first question, at least by the time the case reached this court, gave rise to no real dispute (see Mr Tam's concession: para 30 above). Indeed, as is apparent from Dyson LJ's reference to Craig, it could be seen as a textbook example of one category of the modern law of legitimate expectation. However, since it was the 2004 decisions which were under review, the second question was critical to the success of the application.
"I recognise that cases such as this which justify relief such as is claimed here will be rare. The court has to decide whether the unfairness is such that it goes beyond that which should attract no relief other than that afforded by a right of appeal. I recognise that it is not possible to define where the line should be drawn with any precision. Inevitably, the circumstances of an individual case will be the deciding factor. It is only if the court is persuaded that the unfairness is so bad that abuse of power is an appropriate label that it will find in a claimant's favour." (para 34)
"It is well established that conduct by an officer of state equivalent to a breach of contract or breach of representation may be an abuse of power for which judicial review is the appropriate remedy: see Lord Templeman in R v Inland Revenue Commissioners, Ex p Preston  AC 835, 866-867. This particular form of the more general concept of abuse of power has been characterised as the denial of a legitimate expectation…. In principle I agree that an alleged representation must be construed in the context in which it is made. The question is not whether it would have founded an estoppel in private law but the broader question of whether, as Simon Brown LJ said in R v Inland Revenue Commissioners, Ex p Unilever plc  STC 681, 695B, a public authority acting contrary to the representation would be acting "with conspicuous unfairness" and in that sense abusing its power." (para 44)
"'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 either it is illogical or immoral or both for a public authority to act with conspicuous unfairness and in that sense abuse its power…."
This passage cannot be read as supporting a new and more potent category of judicial review, depending on the flagrancy of the administrative failing. On the contrary the expression "illogical or immoral" was clearly intended to assimilate the test to Lord Diplock's definition of irrationality in CCSU ("outrageous in its defiance of logic or of accepted moral standards"), which had been mentioned in the previous paragraph.
"… in the light of exceptional circumstances, to liberalise the application of existing heads of review (thus ensuring the protection of the norms underpinning them) by facilitating intervention in circumstances closely analogous to, but technically outwith, those in which such heads of review would usually operate."
i) Serious administrative errors by the Secretary of State at the earlier stage had resulted in "conspicuous unfairness amounting to an abuse", and thus illegality;
ii) The court should "give such relief as it properly can";
iii) Although the applicant was no longer entitled to refugee status as such, the Secretary of State had a "residual power" to grant indefinite leave;
iv) The grant of indefinite leave would provide a remedy for the unfairness;
v) There were no countervailing considerations of public interest;
vi) Accordingly, the "appropriate response in the circumstances" would be for the court to declare that ILR should be granted.
The present case
The Article 8 issue
"33… 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."…
34 … 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.
35. 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) In deciding that the claimant could apply from Afghanistan, the Secretary of State failed to take account of the "possibly insurmountable" difficulties in practice of obtaining entry clearance from there; this (at least against the background of excessive delay) made the decision unlawful.
ii) The decision to certify under section 96 was in any event wrong in law, and should be quashed.
iii) On reconsideration, the Secretary of State would be bound to take account of all the circumstances, including both the history of the case, and the practical difficulty of obtaining entry clearance from Afghanistan.
"36. 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 ½ 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 am content, like Collins J, to arrive at the conclusion (albeit by a different route) that the court is able to offer a remedy.
Lord Justice Moore-Bick :
Mr Justice Lightman :