England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		16 May 2006

1. MR JUSTICE COLLINS: This is a claim for judicial review of a refusal by the Secretary of State to accede to an application by the claimant that she should be allowed to remain in this country on the basis of her marriage to Mr A.
2. The background, so far as material, I can relate fairly shortly. The claimant is Jamaican. She came here initially in February 1999, having received a six-month visitor's visa. In April she met her husband to be and in June she applied for and was offered a place on a three-year computer studies course at the South Chelsea College in Brixton. She applied for a student visa and was granted a visa for one year and that was extended in October 2000 for a further one year. In the meantime, her daughter joined her in July 2000 and her two sons in December 2000. She was then still married, although I gather the marriage had effectively broken down and she had three children who were, until they came to this country, in Jamaica.
3. As a result of having to look after her children she was unable to continue her studies and indeed she did not seek an extension of stay on the basis that she should continue her studies. Instead what she did in February 2002 was to claim asylum. That claim was, as she now accepts, an entirely dishonest one. She made allegations that were not true. It is said on her behalf by her lawyers that she was advised and given bad advice by someone that she should make up a story in order to seek to remain in this country. I have little doubt that she may well have been given that sort of advice. Sadly there are around plenty of people who engage themselves in purported advice to those who seek to remain in this country that they should put forward this sort of claim, knowing no doubt that there is a chance that because of the pressure on the Home Office it may take considerable time to deal with it and then there may be rights of appeal which can be pursued. However, as I said, it is entirely accepted that that was not a genuine claim for asylum.
4. It was in fact refused within a month. There was then an appeal lodged against that decision. In the meantime, the claimant and her present husband had grown closer and they decided to get married. He had been married himself but was divorced. She by then had obtained a divorce from her husband in Jamaica. Accordingly, both were free to marry and they got married on 11 April 2003. She was in fact pregnant at that time, but it is the evidence of both her and her husband that her husband had not been informed about her asylum claim and the pending appeal at that stage.
5. Following the marriage, she applied to remain as a spouse of Mr A, himself a United Kingdom citizen. In fact he is a qualified member of the Bar employed by a local authority in a legal position.
6. On 8 May 2003 the claimant withdrew her asylum appeal and thus was relying entirely upon the application to remain on the basis of marriage.
7. On 14 May the Home Office wrote the standard letter to her, acknowledging receipt of her application, stating:

"Your application will now be allocated to a caseworker to be considered. As things stand, we expect a caseworker in the Initial Consideration Unit (ICU) to screen the application within the next 5 weeks. At that stage we will either inform you of a decision or give you a progress report on how long it will take to decide. In most cases (about 65%), postal applications are decided upon initial screening by an ICU caseworker but you should make no assumptions now about how long it may take us to take a decision on your application. Some cases have to be passed to other teams for further enquiries or more detailed consideration. Until the application is screened by a caseworker we cannot tell you whether yours is one that can be completed at the initial screening stage. Our general advice to all applicants is not to make any non-urgent travel plans until they are notified of the decision or receive a progress report."

8. Unfortunately, as far as the evidence before me goes, the Home Office did nothing until it reached a decision on 22 March 2005, some 22 months later. They did not follow what the letter said would happen in sending a progress report and it is worth noting that the letter says in terms that those who wish to make inquiries should not call in person at the public inquiry office, they should telephone or inquire by writing. However there was nothing to inquire about. So far as the claimant was concerned she no doubt assumed that the matter was being progressed and she may well, one suspects, have become more hopeful as time passed. The result of this delay was that the family life which had been commenced in April 2003 by the marriage - and there is no question that the marriage is a genuine one - continued. Her husband's stepchildren attended school here and became settled in this country. The twins had been born in 2003 and another child has arrived. He was born in September of last year. The result is that, because of the delay, the family life has clearly become the more established in this country.
9. Decisions of the Court of Appeal make it clear that, generally speaking, in a situation such as this, the Secretary of State is entirely justified in deciding that the need to maintain a proper immigration control will mean that it is not disproportionate to remove, and had the decision been made within a reasonable time it would have been quite impossible to have challenged it. There would have been no wholly exceptional circumstances - which is the test which is to be applied - to justify a conclusion that a decision by the Secretary of State was in any way flawed as a matter of law, if he decided that it was necessary to remove. In this case there is the added factor that the conduct of the claimant was poor in the sense that she deliberately put forward a false claim for asylum in order to delay any removal, and at the time that she and her husband married she certainly knew that her position was precarious and he must have appreciated that she had not received permission to remain here and was dependent upon the Secretary of State to grant that leave. He ought also as a lawyer to have appreciated that she did not fall within the terms of the relevant rule, which was Rule 284, and thus she would depend entirely on the discretion of the Secretary of State, itself of course guided by the need to comply with Article 8 of the European Convention on Human Rights. Equally, if as a lawyer he had in any way investigated the law in relation to this sort of claim, he would have appreciated that the chances of success were likely to be remote.
10. However, there was, as I have said, a delay which was clearly excessive. As it happens it was I who granted permission. I said in my observations:

"There seems no excuse for the 2 year delay in dealing with the claimant's application for leave to remain and the lapse of time means that the Article 8 claim may have more substance."

11. That should have flagged up to the defendant the need, if there was any excuse for the delay, to produce one. No such excuse has been produced. No evidence has been put before the court on behalf of the Home Office. Mr Patel, for the Home Office, sought to persuade me this morning that he needed time to see whether there was any excuse. But it is far too late for that to be permitted. Since last July the Secretary of State has known that the court was concerned about the apparently inexcusable delay in this case. And since no excuse has been put forward the court is entitled to infer, indeed bound to infer, that there is in truth no excuse for the delay that has taken place in this case. It was not a complicated matter. There is no good reason why the Home Office should take nearly two years to decide upon an application; and Mr Patel has submitted that there is no additional prejudice as a result of the delay because the situation, so far as the claimant is concerned, has not changed. That, in my view, is a submission which lacks merit. It certainly lacks humanity. It must be obvious that the longer the husband and wife and their family are able to remain in this country and put down roots in this country, the more hard it will be for them to be uprooted and for the family life to be interfered with in the way that is suggested.
12. The claimant's husband in his position would find it, to say the least, difficult, if not impossible, to uproot himself, to lose the position he has here, to go to Jamaica with no prospect of any means of livelihood. The alternative is that she goes and has to apply to come back here to join him. It is difficult to see on what basis such an application could reasonably be refused. One bears in mind the importance of not allowing people by acting unlawfully to jump the queue and to avoid the necessary immigration controls. But there is no reason in this case to believe that it would be reasonable to refuse in due course an application to join her husband here if one was made.
13. The Court of Appeal has relatively recently decided in Secretary of State for the Home Department v Akaeke [2005] EWCA Civ 947, that delay of itself is capable of establishing that a decision to return in the context of Article 8 may be disproportionate even if the delay has caused no prejudice to the relevant applicant. It is clear from the short summary of that case that the delay there was considerably greater than that in this case; it appears to have amounted to something altogether in the order of ten years, although no doubt not the whole of that period was a period during which there was any culpable delay by the Home Office. The court decided, according to the report:

"The temporary disruption to her family life would be justified by the need to maintain public confidence in the fairness of the system overall. The delay in the instant case demonstrated such a breakdown in the system of immigration control that the tribunal [this being an appeal from a decision of the Immigration Appeal Tribunal] was entitled to find that confidence was unlikely to be materially improved by maintenance of a rigid policy of temporary expulsions."

It seems to me that that is the position here. The delay, albeit shorter than that in Akaeke, was itself inordinate and was inexcusable. I am far from convinced for the reasons I have indicated that it could be said that there was no prejudice by the fact that the family was able to remain here for that period of time.

14. The Secretary of State must appreciate that it is essential in these matters that he makes decisions within a reasonable time unless there is a good excuse for not doing so. I appreciate of course that there is considerable pressure upon the Secretary of State and upon the Home Office in dealing with claims. But the pressure, as I recall, was not so acute in 2003 as it had been in the years before then, although undoubtedly there was pressure. Nevertheless, it is quite wrong that this sort of delay, without any explanation, without any contact with the claimant who was making the application, should be permitted. It produces a situation which is unfair to the claimant and, in my judgment, following the approach in Akaeke, can be sufficient and is, in the circumstances of this case, sufficient to render a decision to remove unlawful. It is clear to me that in the circumstances it would not be proportionate to remove because it would be, on the face of it, merely a temporary removal to enable an application to be made from Jamaica and then considered, one hopes within a reasonable time, and a decision reached. That exercise seems to me to be quite unnecessary to maintain proper immigration control where the Secretary of State himself has been guilty of this sort of inordinate and inexcusable delay.
15. I should only add that Mr Patel submitted to me that he should have time to consider submissions based upon Akaeke because it was put before him at the last moment. He should have been aware from the terms of the permission that delay was the real issue, and it could not be assumed that the lack of prejudice would turn the case, if such a lack of prejudice were indeed the situation. It was up to him to prepare the case on the basis, as I have said, that delay was the crucial issue. If he was not aware of Akaeke that was his fault. It was a case which in immigration context was one certainly of which the Secretary of State should have been aware since he was a party to it. In all the circumstances it was, in my judgment, quite unnecessary to give him more time. Indeed it is quite impossible to conceive of any argument that he could sensibly have put forward even if he were to be given more time.
16. In the circumstances - and it is an exceptional case because of that delay - I am satisfied that it is appropriate to grant the relief that is claimed, to set aside the decision of the Secretary of State and to declare that it would be disproportionate to remove the claimant in the exceptional circumstances of this case, having regard to Article 8. This claim therefore succeeds.
17. You want costs, I expect, Mr Ollennu?
18. MR OLLENNU: My Lord, yes. Can I say removal directions were made on the children as well.
19. MR JUSTICE COLLINS: Those are quashed, because obviously this will extend to the family.
20. MR OLLENNU: I am grateful. My Lord, I have not been given any summary of costs.
21. MR JUSTICE COLLINS: You better have it, unless your resist an application for costs, Mr Patel.
22. MR PATEL: My Lord, I cannot.
23. MR JUSTICE COLLINS: Costs, if not agreed, to be the subject of detailed assessment. Do you want to make any other application, Mr Patel?
24. MR PATEL: I am not instructed to, my Lord.
25. MR JUSTICE COLLINS: I am not surprised. I think the best is a declaration. I declare that it would be disproportionate to remove the claimant, and would the Secretary of State in the light of that reconsider the question of the children, because that is not strictly before me, is it?
26. MR OLLENNU: I think it was. The application was on behalf of ---
27. MR JUSTICE COLLINS: It follows that the removal must be quashed.
28. MR PATEL: I am content for the removal direction to be quashed, because that follows from your judgment; but I would have concerns about a declaration.
29. MR JUSTICE COLLINS: It follows from my judgment.
30. MR PATEL: It does, but it is just in terms of time, as it were, whether the declaration would go, because there may be circumstances that in future ---
31. MR JUSTICE COLLINS: Set aside the decision, quash the removal directions and the Secretary of State must now reach a decision if accordance with the judgment.
32. MR PATEL: My Lord, I am happy with that.
33. MR JUSTICE COLLINS: That is all that is necessary, thank you.