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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mersin, R (on the application of) v Secretary Of State For Home Department [2000] EWHC Admin 348 (25 May 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/348.html
Cite as: [2000] INLR 511, [2000] EWHC Admin 348
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Between: QUEEN v. SECRETARY OF STATE FOR HOME DEPARTMENT ex parte DENIZ MERSIN [2000] EWHC Admin 348 (25th May, 2000)
IN THE HIGH COURT OF JUSTICE Case No:
CO/4433/99
QUEEN S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London
WC2A 2LL
Thursday 25 May 2000
----------------------------------
THE QUEEN
(Respondents)
FOR THE HOME DEPARTMENT
ex parte
DENIZ MERSIN
(Applicant)
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
__________________________________
Mr. Stuart Catchpole appeared on behalf of the Respondent.
Mr. Richard Drabble Q.C. & Mr. D Seddon appeared on behalf of the Applicant.
As Approved by the Court
Crown Copyright ©
The applicant in this case is a citizen of Turkey who arrived in the United
Kingdom on the 29th August 1992. He claimed asylum on his arrival at
the port. The respondent decided to refuse the application in July 1997 and
that decision was informally communicated to the applicant's solicitors on 4
August 1997. The applicant's solicitors took the view that this decision was
plainly wrong; they sought to have it reconsidered but that was refused, and
decisions formally refusing asylum and leave to enter were served on the
applicant on the 13 August 1997. The applicant appealed to the Special
Adjudicator who, following an oral hearing on the 2 February 1999, allowed the
appeal in a determination promulgated on the 29 March 1999. The Respondent did
not appeal that decision. The time for appealing expired after five working
days.
The adjudicator is not empowered to confer refugee status or to give
indefinite leave to remain. There are two stages in that process. First, the
decision to grant asylum i.e. to authorise the grant of refugee status itself,
is made by Secretary of State (see para. 328 of the Immigration Rules). The
body to whom he has delegated that decision is the Integrated Casework
Department ("ICD") which is the department of the Immigration and Nationality
Directorate of the Home Office ("IND") dealing with all asylum matters. The
second stage is the actual grant of leave to enter. This is taken by the
immigration officer at the port where entry was originally sought (see section
4 of the Immigration Act 1971). If asylum has been granted, then the officer is
obliged to grant leave to enter; if it is refused, the immigration officer must
consider whether there is a right of entry under any other provision of the
immigration rules. The rationale for this division in asylum cases between the
body which grants asylum and the body which formally confers the right to enter
is not clear to me, but it is plainly what the law requires, as the Court of
Appeal recognised in R v Secretary of State for the Home Office ex parte
Salem [1999] Q.B.805
No decision to grant refugee status was made until 30 September 1999, over six
months from the date of the Adjudicator's decision. The actual grant of leave
to enter, which is effectively the implementation of the asylum decision, was
not then taken until 13 November 1999, some six weeks later.
Proceedings for judicial review were issued on the 9 November 1999. The
applicant sought mandamus directing the respondent to grant him refugee status
and damages for losses suffered by the delay. By the time the matter was
considered for permission for judicial review, the applicant had been granted
refugee status and indefinite leave to remain. However, Maurice Kay J., on
February 17, 2000 held that the case should continue after hearing submissions
about the scale of difficulties facing similarly placed applicants. He was also
of the view that the case could constitute a test case on the question of
damages. In fact in the hearing before me, Mr. Drabble QC, for the applicant,
disavowed any claim for damages. He did however make it clear that he was
seeking a declaration not merely that the respondent had acted unlawfully by
delaying in respect of this case, but that at the date of the hearing the
respondent was continuing to be in breach of his duty to deal sufficiently
expeditiously with those applicants for asylum who had been successful before
the Special Adjudicator. Moreover, in his opening submissions he submitted that
so outrageous was the treatment of asylum seekers who fell into that category
that he was seeking an order whereby the Secretary of State would be obliged to
report to the court every three months or so to demonstrate that he was
properly complying with his duty. The precise form of relief that he sought was
contained in an amended form 86A which was served on the respondent on the 18
May 2000. This sought relief in the following terms:
"A final injunction, alternatively an order of mandamus, requiring the
Respondent to remedy that default in his system of operation for issuing
refugee status to asylum applicants who are successful on their appeals before
the immigration appellate authorities such that the system complies with any
declaration the Court is minded to make as to the lawfulness of the conduct of
the Respondent in this respect; and to revert to the Court in three months from
the date of order with a report as to the action taken to remedy the said
defaults and the consequent affects on the average period between promulgation
of successful appeal in determinations and the issue of refugee status."
I consider that it would be wholly inappropriate for a court to grant such
relief. The courts can identify breaches of the law by the Secretary of State,
but I would be trespassing on the Respondent's own discretion if I were to
formulate an injunction or mandamus directing him how to deal with these cases
in the future. Furthermore, in my view I would be trespassing on the function
of Parliament if I were to try to hold the Minister to account to the court for
his future conduct in the manner proposed. Ministers report and are accountable
to Parliament, not to the courts. Even if I were to find that the respondent
was in continuing breach of his legal obligations, it would be quite wrong to
assume that he would be unwilling to abide by those legal obligations in the
future in accordance with any judgment I would give, yet that seems to me to be
the assumption that would need to be made if any such order were even to be
considered. There is no basis at all for making that assumption here.
The facts
I shall set out the relevant background in fuller detail. I have seen witness
statements from Ms. Fiona Ripley, the applicant's solicitor, on behalf of the
applicant, and Mr. Alan Underwood, the Director of the Integrated Casework
Department, on behalf of the Respondent. He in fact amended his original
witness statement to deal with the amended relief.
Mr. Underwood helpfully described the procedures, following the determination
of a Special Adjudicator, which were in place at the relevant time.
Unfortunately, the pressures on the ICD were such that they were simply not
complied with. In theory, at least until 1st April 1999 all
determinations by the Special Adjudicator were first sent to the Presenting
Officer's Unit of the ICD (the "POU"). Any allowed determinations would then be
sent to the relevant Case Management Unit. In the case of allowed appeals that
were not being appealed, the caseworker in the Case Management Unit should have
authorised the grant of refugee status and sent the file to the port of entry
so that the immigration officer could then grant refugee status and indefinite
leave to remain. Given the essentially clerical nature of this task, this ought
to have provided a relatively speedy system. Unfortunately, in March 1999
resources were apparently limited and determinations were not processed by
CMUs. Instead, they were left unprocessed and the papers were passed to another
unit, the ICD's Correspondence Linking Unit, who were responsible for ensuring
that all correspondence was sent for linking to the appropriate file. This did
not deal with the backlog, and by April 1999 there were some 4000
determinations, most of which were dismissed appeals rather than successful
ones, which were in limbo, not having been linked to any file. A special
exercise was then conducted which succeeded in linking the determinations to
the relevant file. For some reason it appears that this exercise did not
unearth the determination in the applicant's case.
On the 20 May 1999 the applicant's solicitors wrote to the IND asking them to
expedite the applicant's asylum status. They informed the IND that the
applicant had collapsed and had been taken to hospital, and that it would
assist his recovery if he could visit his uncle in Germany. In addition it was
pointed out that the applicant could not obtain work and that it would assist
him to obtain benefit for asylum status to be granted. On the 27 May the
applicant attended the Public Enquiry Office ("PEO") of the IND with a further
copy of the determination. Following that visit the applicant's file was
requested by the PEO and it arrived on the 4 June. The applicant returned to
the PEO on the 27 July but yet again the determination had not been linked to
the applicant's file. It was finally linked on that day and sent to the Unit
responsible for allocating work with a request that it be given priority
attention. There were apparently no case officers available to process the
file, and it was sent to a holding location.
On 9 September the applicant's solicitors wrote to the Immigration Officer at
Heathrow Terminal 3 to see whether the file had been received by them, and at
the same time they wrote to the ICD to ask them to expedite the matter. No
reply was sent to the latter letter, although the file was finally sent to the
immigration officer on the 30 September. By the 8 October the applicant's
solicitors were understandably becoming extremely dissatisfied with the
applicant's treatment and they wrote to the immigration office at Terminal 3,
the IND and the Treasury Solicitors threatening judicial review In the letter
to the Immigration Office the solicitors included a report from Dr. John Rundle
which expressed the view that the applicant had probably suffered an epileptic
attack and that the stress of waiting would have a considerable effect upon the
likelihood of a further attack. On 14 October the Chief Immigration Officer
replied saying that he was unable to accede to the applicant's request, that
his illness was not life threatening, and that accordingly there was no
justification for the Immigration office departing from its usual practice of
dealing with the applications in order of receipt. The grant of refugee status
was made on the 13 November, following hot on the heels of the judicial review
application made four days earlier. On any view, the treatment of the applicant
has been less than satisfactory, and indeed, Mr. Underwood very properly
apologised to the applicant for the delays he had suffered.
Dr. Underwood in his witness statement indicated that changes had been made
which had improved the position since the applicant's experience. He said that
since the 1 April 1999 the POU would, through its presenting officers, consider
whether or not to appeal an adjudicator's decision and if not, would send the
papers on to the a CMU for action. Unfortunately, even then it was necessary
for staff to be available to authorise the grant of asylum and send the papers
on to the immigration office. In fact by September 1999 there was apparently
again a backlog of some 15,000 determinations, including some appeals. By
February some 9000 of these had been handled of which about 500 were allowed
appeals.
The procedure in the POU was further amended in December 1999. All dismissed
files were then linked to files in the POU itself before being sent onto the
CMU. I was told that an even more significant step was envisaged, namely that
the Presenting Officers themselves would be able to authorise the grant of
refugee status directly. They would then send the file on to the immigration
officer with the appropriate direction. Clearly this would very dramatically
speed up the process.
Meanwhile Mr. Underwood has said that since the 6 March a special unit, the
Post Decision Support Unit, has been set up to deal with all post decision
work, including successful appeals. A special drive was initiated from 22 May
2000 to clear the backlog.
Ms. Ripley made a further witness statement in response to Mr. Underwood's
claim that the reforms in April 1999 and February 2000 had improved the
position. She said that she had contacted other solicitors active in the field
and there had still been significant delays after the April reforms, the
majority of allowed asylum appeals taking more than 5 months before the
appellant had been granted refugee status. Furthermore, the changes in February
did not seem to have had much impact.
Whilst I have no doubt that there were significant delays even after the
reforms in April 1999, I do not think it would be right for me to rule on
whether these delays were in all the circumstances unlawful, for two reasons.
First, the nature of the evidence about the effect of these changes on the
handling of asylum claims is relatively scant and anecdotal. Second, Mr.
Underwood has, as I have indicated, drawn attention to further recent reforms,
which, if implemented properly, will have a significant impact on the position,
and indeed may clearly have done so. In view of this, it would in my view be
wrong to consider granting a declaration relating to the position as at the
time of the hearing before me, and unsatisfactory to do so in respect of any
period between the date when the applicant's position was considered and the
hearing.
Given that refugee status had now been granted, and that the claim for damages
was not pursued before me, I have considered whether this would be an
appropriate case to grant relief, assuming that the claimant made good his
case. There is clearly power to do so in an appropriate case, as the House of
Lords recognised in R v Secretary of State for the Home Department ex
parte Salem [1999] 1 A.C.450.The respondent has not sought to argue that
I should in my discretion refuse any relief on the grounds that there is no
continuing dispute, and I have decided that this is one of those exceptional
cases where it would not be a pointless or academic exercise. In my view it is
appropriate to consider whether the delays in dealing with the applicant's own
application were such as to constitute unlawful delays. Had the allegation been
that the delays were simply the result of acceptable procedures being wrongly
applied in this particular case, so that they could not be said to be the
consequence of any policy about how cases of this type should be handled, I
would not have been minded to give any relief this long after the refugee
status has been granted. However, although there were certain specific failings
in this case which exacerbated the problems and were, I hope, not typical of
the way in which the generality of cases were handled, the delays were to a
significant extent the result of a deliberate decision about how to deal with
cases of this kind, coupled with what appears to have been at the crucial time
a lamentable lack of resources. This was recognised by Mr. Underwood who, it
should be noted, accepted that the applicant's case was not unique and that
others had experienced similar delays. To that extent, therefore, this is in
the nature of a test case.
According to Mr. Underwood, a major cause of the difficulties in handling this
kind of case was that, on advice, the department adopted working methods and a
new IT support system which was designed to facilitate decision making but in
fact wholly failed to achieve the benefits envisaged. An anticipated 40%
improvement in productivity was not forthcoming. This was because of a number
of factors such as increased demand, staff inability to work the new system,
delayed training in the new system, and the problems created by the
pre-existing backlog. Apparently there was a stage when some 60,000 telephone
calls were being made daily but only a few hundred were being dealt with. A
major feature of the system which inevitably meant that there would be delays
in the processing of post adjudication claims was that the ICD, which was set
up in 1999, replaced five previous single disciplinary casework directorates.
The multi-functional directorate dealt with all cases in order, without
recognising any priority for successful applicants before the Special
Adjudicator.
The implications of delay
The delays in according immigration status can have significant adverse
effects upon a successful asylum seeker. I will consider these relatively
briefly since they were not in substance disputed. First, it is not possible to
travel abroad; such travel can only be made if the refugee has a United Nations
travel document. That is issued pursuant to the 1951 Convention but only once
formal refugee status is accorded. The applicant suffered from this
consequence, as I have indicated above. Second, the right to British
citizenship arises only once a person has been settled for one year and has
been resident for five years (see section 6 and Schedule 1 to the British
Nationality Act 1981). However, in order to be settled a person has to have
been granted indefinite leave to remain. Although there is nothing in the
immigration rules requiring a successful asylum seeker to be given indefinite
leave to remain, that is the practice adopted by the authorities. Delays will
put back the start of the period for acquiring settled status, which will be
potentially important for those asylum seekers who already have the five years
residency. Third, there are problems in obtaining housing because until a
person is recorded by the Secretary of State to be a refugee, he is ineligible
to take up local authority accommodation or to apply as being homeless to the
authority (see sections 161(2) and 181(2) of the Housing Act 1996). Finally,
there are adverse social security consequences. It was a matter of some debate
before me precisely how detrimental the position currently is. However, I
understood it to be common ground that as a consequence of section 11 read with
schedule 1 to the Asylum and Immigration Act 1996, the applicant himself could
not claim benefit once asylum had initially been refused until he was
subsequently recorded by the Secretary of State as a refugee. Thereafter he
could receive benefit at the full rate. In addition, he would have his claims
back-dated at that time to the date when he was refused asylum, but only at a
lower rate than he would otherwise have received, namely 90% of the usual rate.
Accordingly, the delay in determining his status resulted not only in a delay
in his receiving payment, but also in a lower overall payment.
I should add that the position has since changed for persons who claimed
asylum on or after the 3rd April 2000 (see section 21ZB of the Income Support
Regulations). They are entitled to the full rate back to the date they first
claimed asylum. There was some debate before me as to the precise effect of
this new provision, and in particular whether, by reason of the proper
construction of the relevant regulations, an asylum applicant would be
adversely affected if his status was not determined within fourteen days of the
disposal of his appeal. That issue does not bear on this or similarly placed
applicants and accordingly I have not been required to resolve it.
Quite independently of these practical disadvantages, there are understandable
stresses that someone is likely to suffer when his application has been based
on a fear of persecution which has been held to be well-founded, and yet he is
left in a continuing state of uncertainty about his future. As I have
indicated, in this case the applicant's doctor thought that such stresses might
adversely affect the applicant's health.
The law.
The starting point is the effect of a decision of the Special Adjudicator. Mr.
Drabble QC for the applicant submitted that once the appeal had been upheld and
not appealed to the Immigration Appeal Tribunal there was a duty on the
Secretary of State to give effect to it. Mr. Catchpole, who presented a cogent
and forceful argument for the respondent, denied that there was such a duty. He
pointed out that technically an appeal to the Special Adjudicator is not an
appeal against a rejection of asylum per se, but rather an appeal that the
proposed removal to a particular country would constitute a breach of the 1951
Convention. As Sir John Balcombe pointed out in the Salem case in
the Court of Appeal, adopting an apt phrase of counsel, (page 830)
"As Mr. Garnham, for the Secretary of State, put it in his clear and helpful
skeleton argument: "refusal of leave to enter is the occasion of the
right to appeal; the fact that removal would be contrary to the United Kingdom
obligations under the Convention is the ground of the appeal."
Mr. Catchpole submitted that even after the adjudication the Secretary of
State still had to satisfy himself that the criteria for asylum set out in
paragraph 334 of the Immigration Rules were satisfied and he submitted that the
adjudicator's determination was merely a stage in that process. He submitted
that it would be open to the Secretary of State to refuse to authorise asylum
if there were some change in the material facts since the adjudication. such as
where there was a coup which rendered a previously unsafe country no longer
unsafe, or if there was another safe third party country where he could be
sent. In my view it misrepresents the significance of the adjudicator's
decision simply to treat it as part of the decision making process. Mr.
Catchpole did realistically accept that even on his analysis, it would only be
in the most exceptional situation that asylum could be refused in the face of
an adjudicator's determination. Moreover, he accepted that even if there was a
residual discretion in an appropriate case for the Secretary of State not to
authorise the grant of refugee status, once it had been authorised, there was
no discretion at all for the immigration officer at the port of entry to refuse
to recognise that status and, in accordance with established practice, to grant
indefinite leave to remain. That was a purely ministerial act which the
immigration officer was under a duty to carry out.
In my opinion there is a clear duty on the Secretary of State to give effect
to the Special Adjudicator's decision. Even if he can refuse to do so in the
event of changed circumstances or because there is another country to which the
applicant can be sent, there is still a duty unless and until that situation
arises. It would wholly undermine the rule of law if he could simply ignore the
ruling of the Special Adjudicator without appealing it, and indeed Mr.
Catchpole does not suggest that he can. Nor in my opinion could he
deliberately delay giving effect to the ruling in the hope that something might
turn up to justify not implementing it. In my judgment, once the adjudicator
had determined the application in the applicant's favour, the applicant had a
right to be granted refugee status, at least unless and until there was a
change in the position. In this connection it is material to note that the
decision of the Special Adjudicator determines the position at the date of the
determination itself. I should add that even if the applicant does not,
properly analysed, have a right in the strict sense, in my view his position is
sufficiently akin to a right (whether described as a legitimate expectation or
not) for the same public law principles to apply.
The crucial question, therefore, is whether the delays in this case
constituted a breach of that duty. I accept Mr. Catchpole's submission that
there is plainly no fixed period within which the Special Adjudicator's
determination has to be implemented. I also accept that it is not legitimate to
read in such a fixed period by reference to subsequent social security
legislation, which was one of the arguments advanced by the applicant. The
later statute cannot affect the proper construction of the earlier one. Mr.
Drabble contends that it is nonetheless necessary for the Secretary of State to
act within such period as is reasonable in all the circumstances, and that in
any event the delays in this case- seven and a half months for what were in
essence ministerial acts- were outside the bands of Wednesbury
reasonableness.
In my opinion it is necessary to bear in mind three features of this case.
First the Secretary of State has not deliberately delayed in granting refugee
status, for example in order to conduct further inquiries or anything of that
kind; he accepts that the delays are solely the result of the administrative
procedures taking their course. Second, whilst no doubt shortage of staff has
in part explained the delay, a very important reason for the delay was that no
distinction was made at the relevant time between those who had successfully
appealed an initial refusal and those- a very much larger number- whose
applications for asylum were still being considered. That was, of course,
because the respondent chose to organise matters in that way, operating through
a multi-functional directorate which gave no priority to the position of those
in the applicant's position. Third, the respondent has accepted that the delays
in this case, and other similar cases, were unacceptable. His contention is
that it was not unlawful.
Mr. Catchpole's argument was in essence very simple. He said that the
department must be entitled to organise its work in such manner as it thought
administratively appropriate and that unless it did so in a wholly irrational
way, the court should not interfere. It is not for the court to substitute its
view of how the administration should be organised for that of the department.
This was particularly so in this case because the decision to adopt the
multi-functional directorate was taken after advice from management
consultants. Furthermore, the IND was under enormous pressure throughout the
relevant period, and the court should not place it in a position where it would
have to divert its resources to give priority to claims such as those made by
the applicant. That would simply prejudice other groups.
Mr. Drabble submitted that where rights were at stake, or in any event
something akin to a right, the courts should be vigilant to protect them and
administrative difficulties could provide no defence to dilatory action. The
respondent was obliged to perform his duty within a reasonable time,
reasonableness being determined by the nature of the duty, the task imposed
upon the respondent, and the potential effect upon the applicant. Here, he
submitted, the nature of the task was virtually clerical in nature, and yet the
delays had seriously prejudicial effects on the applicant.
It is well established that if the delays are for an improper purpose or
frustrate the exercise of a statutory duty, the courts will interfere: see
e.g. Engineers and Manages Association v ACAS [1980]
1WLR302(H.L.) and The Cheng Poh v Public Prosecutor, Malaysia
[1980] A.C.458. The question here is whether delays resulting (at least in
part) from the way in which the administration of functions is organised can
render the delays unlawful.
Mr. Drabble relied upon two cases in particular in support of his argument
that the delays were unlawful. First, he submitted that the judgment of Woolf
LJ, as he then was, in R v Social Services secretary ex parte
Child Poverty Action Group [1990] 2 Q.B.540 at 544-545 showed that in an
appropriate case the courts could question whether the Secretary of State had
allocated sufficient staff to enable the duties of the department properly to
be fulfilled. No doubt that is right, but the evidence here falls short of
establishing Wednesbury irrationality even at the time when the applicant's
case was under consideration, and further resources have been provided
since.
In my view, far more pertinent was the decision of the Court of Appeal in
R. v Secretary of State for the Home Office ex parte Phansopkar
[1976] Q.B.606. The applicant in that case was the wife of an Indian who was
resident in England and registered as a United Kingdom citizen. Under section
1(1) of the Immigration Act 1971 he became a patrial with a right of abode in
the U.K. and his wife, who lived with his four children in India, automatically
became entitled to the same right. However, in order to gain entry into the
U.K. the wife had to have a certificate of patriality which was granted only
once she was able to satisfy the authorities that she was indeed the wife of a
patrial. In Bombay there was a fourteen month delay in granting the
certificate, principally it seems because no distinction was drawn between
those claiming a right of entry and those seeking leave to enter. The applicant
came to England in an attempt to jump the queue but was refused entry on the
grounds that the immigration authorities had adopted a policy that a person
seeking a certificate of patriality had to do so in her own country of origin.
In a joined appeal a Mrs. Begum from Bangladesh ran a similar argument. The
Court of Appeal held that there was no justification for adopting such a rule,
and that the authorities should have considered the women's applications in the
U.K. Lord Denning M.R. summarised the legal position as follows: (page 621)
"Each of these two ladies is entitled to come into England without let or
hindrance provided that she is truly the wife of her husband. She does not
have to seek permission. She comes as of right and not by leave. No one can
refuse to admit her, provided she can prove it by means of a certificate or
patriality: see section 3(9) of the Act of 1971.
Such being her right, I do not think it can be taken away by arbitrarily
refusing her a certificate, or by delaying to issue it to her without good
cause. She can invoke Magna Carta: "To none will we sell: to no one will we
delay or deny right or justice." It seems to me to be implicitly in this
legislation that a wife, who is truly a wife, is entitled to apply for a
certificate of patriality and to have her application examined fairly and in a
reasonable time. If refused a certificate, she has no right of appeal to
anyone. No even to an adjudicator or to the appeal tribunal: see section 13
(2) and (3). She is then thrown back to the lesser class of those who do not
enter by right but only by leave: see section 3(1). If her right is to be of
any avail, the authorities must set up the appropriate machinery by which she
can apply for a certificate of patriality. There is nothing in the Act or the
Rules to tell us what the machinery is except that a certificate of patriality
may be "duly issued to [her] by a British Government representative overseas or
by the Home Office": see the Statements of Immigration Rules for Control on
Entry: Commonwealth Citizens, H.C. 79, 1973, rule 4. Seeing that it can be
issued by one or other of those authorities, I should have thought that her
application could properly be made to one or other of them and that it should
be entertained by that particular authority-the one to whom she applies-unless
there was some sufficient reason for sending her off to the other."
Later in his judgment he said this:
"Such being the nature of the inquiry, I do not think the Home Office in London
are justified in refusing the application simply because these two ladies are
"jumping the queue." The ought, I suggest, to be a separate queue in Bombay
or Dacca for those wives who seek a certificate of patriality. If they fail
to satisfy the officer, they should go to the bottom of the other queue of
those who require leave to enter. That should discourage fraudulent
applications. By making a separate queue for certificates or patriality,
there should be little delay and the Home Office could well then say that they
will not deal with them in London."
Scarman LJ drew a similar distinction between those who have a right and those
who have only a hope of entry: (page 627)
"As I read the Secretary of State's reply to each application, he refused to
consider either application upon its merits, expressing the view that it would
be more convenient, more satisfactory, for the applications to be dealt with in
India or Bangladesh. If the true balance be between the convenience or the
authorities (for it cannot be convenient for the ladies) and respect for human
rights, the Secretary of State would be misreading the scales of justice. But
in truth the balance, as he sees it, is one of justice between those who, with
these ladies, jump the queue and the members of the queue in India and
Bangladesh. That is more difficult, but I think the answer that Mr. Kadri and
Mr. Cotran make for the appellants is fair: the queue which imposed the delay
consists substantially of applicants for leave, and should not be allowed to
delay those who are claiming a right. And I could add that the facts of each
case are such as to indicate a strong probability that the right will be
proved-as it was in every such application handled in India or Bangladesh in
1974."
Later he said that
"If he thinks it right to place those who have (or claim to have) a right in a
queue which is swollen by those who do not have a claim of right, he should say
so in the rules and so obtain the approval of Parliament for his view of the
matter."
Lawton L.J gave a judgment to similar effect.
Mr. Catchpole said that this case was distinguishable on the grounds that in
this case there was a considered decision to recast the decision-making process
in the way it was applied. I do not find this convincing. Indeed, the right in
this case seems to me to be stronger than in Phansopkar
since in that case it was still necessary for the applicant to prove that
she was the wife of a patrial. Here there is nothing more for the applicant to
establish before being granted refugee status.
In my judgment if someone has established the right to some benefit of
significance, as the right to refugee status and indefinite leave surely is,
and all that is required is the formal grant of that benefit (in the absence at
least of a change in circumstance since the right was acquired or other
exceptional circumstance), then it is incumbent upon the authority concerned to
confer the benefit without unreasonable delay. The resources available to the
authority will be part of the circumstances which can be taken into account
when determining whether the delay is reasonable or not. However, if the
authority fails to have regard to the fact that a right is in issue, it will
have failed to take into account a relevant factor and will be acting
unlawfully. In this case the respondent ought to have treated the applicant and
those in a similar position differently to other categories of cases. The
failure to do that both rendered the decision unlawful in traditional
Wednesbury terms and meant that the refugee status was not granted within a
reasonable period.
I should add that in my view even taking both stages in the procedure
separately, each was unlawful considered separately. For the ICD to take six
months to send the file on was wholly unacceptable. The immigration officer at
Heathrow had merely to grant the status and indefinite leave without any
discretion being exercised at all. He also appears to have simply taken the
applicant's case in order of receipt of all cases in his file, without giving
any weight at all to the fact that the applicant had already been found
deserving of refugee status. It must have taken significantly longer to decide
why his application should not be expedited and then inform him of the reasons
than it would have done simply to deal with the application. To tell him that
his illness was not life threatening and that accordingly he should wait his
turn simply added insult to injury. Common sense seems to have become stifled
by bureaucratic rules.
For these reasons I consider that the applicant is entitled to a declaration
that the respondent had delayed unlawfully in granting him refugee status and
indefinite leave to remain.
I should add this. Mr. Drabble said in opening that the conduct of the
respondent had been scandalous. That, in my view, is too harsh a verdict. Any
judge sitting in the Crown Office is acutely aware of the extremely severe, at
times almost overwhelming, pressures which the IDU has been under, and Mr.
Underwood's statement confirmed this. The officials have an exceptionally
difficult and unenviable job where there are many brickbats given, but barely
the whiff of a bouquet. In my view this applicant has been poorly and
unlawfully treated, but active steps are being taken to ensure that the lessons
of his case, and those of others like him, have been learnt. There is every
reason to hope that the deficiencies highlighted in this judgment will not recur.
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