QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| H G
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Amanda Jones (instructed by Malik & Malik) for the Claimants
Hearing dates: 25th September 2008
Crown Copyright ©
Mr Justice Underhill :
THE COMMON ISSUE
How the Issue Arises
(a) whether the opportunity to benefit from the policies under which they could have expected to receive ILR or ELR had been lost as a result of the individual's own actions (e.g. where the delay had been caused by his failure to cooperate with the asylum process) and
(b) whether they pass the character and background checks which are applied to all applicants for ILR.
The Secretary of State's position is now set out in a published document entitled "CRD Guidance on R (S) policy".
(1) A new "Case Resolution Directorate" ("CRD") within the UK Border Agency (previously the Border & Immigration Agency) ("the Agency") has been established to deal specifically with the legacy cases. Its objective is to clear the backlog entirely within a period of five years that is, by mid-2011. It took some time to set the Directorate up and get the necessary systems in place but it has been fully operational from late 2007.
(2) The CRD is required to identify as a priority cases falling into four specified categories namely:(i) cases in which the individuals concerned may pose a risk to the public;(ii) cases relating to individuals who are in receipt of public support;(iii) cases in which it is likely that a decision will be made to grant leave to enter or remain in the UK;
(iv) cases where the individuals can more easily be removed.
Cases in those priority categories, once identified, will be dealt with first. No one category has priority over the other, and precisely in what order particular priority cases are dealt with will be decided by individual casework managers as a matter of administrative management rather by reference to any substantive criteria save that cases in category (i) are to be "accorded a significant weight" when deciding the order in which cases should be considered. The remaining, non-priority, cases will not be dealt with until all the priority cases have been disposed of. The present estimate is that the priority cases will all have been resolved by March 2010 and the remainder by mid-2011.
(3) It is recognised that there may be a need to take "truly exceptional or compassionate cases" out of order: in particular, that might be appropriate where cases have been "seriously mishandled" or where there are "compelling compassionate circumstances". Guidance as to the operation of this exception has now been developed and published.
(a) so-called "Rashid cases" see R (Rashid) v. Secretary of State for the Home Department  Imm AR 608 ( EWCA Civ 744) being another category of cases in which an unlawful practice on the part of the Secretary of State led to asylum-seekers, in this case from Iraq, being unfairly deprived of the opportunity to obtain leave;
(b) cases where the applicant appears to satisfy the long residence requirements under paras. 276A-D of the Immigration Rules;
(c) some cases where families are entitled to the benefit of the "seven-year child concession" or have otherwise over a long period established a family life in the UK such that removal would be contrary to art. 8 or otherwise inappropriate.
There is also a group, which I was told is comparatively small, of persons previously admitted as unaccompanied children and who remain under 18.
I would only add a footnote. Since a substantial delay is, at least for the next 5 years or so, likely to occur in dealing with cases such as these, steps should be taken to try to ensure that so far as possible claimants do not suffer because of that delay. They should be informed when receipt of an application is acknowledged, as it must be, that there will likely to be a wait which could be for x months (or years). Thus they should be asked not to pursue the Home Office unless circumstances have arisen which make a communication necessary, for example, a new development or a need which has arisen for some sort of discretionary action. One serious and matter of complaint has been the continual failure of the Home Office to respond to or even acknowledge receipt of correspondence. Measures should be taken to minimise any prejudice to applicants occasioned by the delay. Thus those who were being given support should continue to receive it, those who were able to work should continue to be permitted to do so and there should be favourable consideration of desires to travel outside the United Kingdom for short periods (as, for example, in a case such as FH) without affecting the validity of the application. Applicants should not suffer any more than is inevitable because of delays which are not in accordance with good administration even if not unlawful.
Mr Jay [counsel for the Secretary of State] submitted that the situation in these cases differed fundamentally from that in S since there was no detriment occasioned. In S, the delay had denied the claimant the grant of ILR which would, had his initial claim been dealt with within a reasonable time and not unfairly put into the backlog, have been made. In reality, as it seems to me, the unlawful approach had led to the delay and it was the delay which in its turn has caused the loss of ILR. Thus the delay was unlawful. If the system in these cases was responsible for an unlawful delay, the claimants are entitled to redress and at least to a declaration that their claims must be considered forthwith. As I have said, detriment has resulted from the delay.
The Parties' Cases
(1) She referred to the observation in para. 22 of the judgment of Collins J in FH, which I have set out at para. 12 above, that S-type applicants for ILR were entitled to have their claims heard "forthwith". She acknowledged that the remark was obiter; but she drew support from the fact that not only Collins J. but apparently counsel for the Secretary of State appeared to recognise that S-type cases would require special treatment.
(2) She submitted that S-type cases should be characterised as cases of "serious mishandling" and thus fall to be treated as "truly exceptional" within the meaning of the guidance referred to at para. 8 (3) above.
(3) She submitted that the situation in the present case was analogous with that considered by the Court of Appeal in R v Secretary of State for the Home Department, ex p. Phansopkar  QB 606, in which it was held that the Secretary of State was obliged to set up two "queues" one for those who were entitled leave to enter, subject only to administrative arrangements, and another for those whose cases required an exercise of discretion.
No doubt it is implicit in the statute that applications should be dealt with within "a reasonable time".
But, as he continued:
That says little in itself. It is a flexible concept, allowing scope for variation depending not only on the volume of applications and available resources to deal with them, but also on differences in the circumstances and needs of different groups of asylum seekers.
FH has confirmed that when resources are scarce "a reasonable time" is, alas, not inconsistent with a very long delay, subject only to the Secretary of State having a fair and rational system of priorities.
The key in my view must lie in [Pill LJ's] emphasis on the scope of the remedial powers of the Secretary of State . Although he seems to have expressed the result as an exercise of the court's remedial discretion, the court itself had no power to grant ILR. Nor, on a conventional analysis, did it have power to direct the Secretary of State to grant ILR. The power and the discretion rested with the Secretary of State. It was not open to the court to assume that function (cf. R v Barnet LBC, ex p Shah  2 AC 309, 350F-G). However, it was open to the court to determine that a legally material factor in the exercise of that discretion was the correction of injustice. That proposition did not require express statutory authority. It was implicit in the principles of fairness and consistency which underlay the whole statutory scheme. Further, in an extreme case, the court could hold that the unfairness was so obvious, and the remedy so plain, that there was only one way in which the Secretary of State could reasonably exercise his discretion.
Likewise Moore-Bick LJ said this, at para. 72:
Like Carnwath LJ, I do not find it altogether satisfactory to approach the question simply as if the court were being invited to grant a remedy in respect of an unlawful act committed some years earlier because the question that ultimately has to be decided on this appeal is not whether that earlier decision was unlawful but whether the later decisions were unlawful. However, I agree that the Secretary of State's earlier unlawful decision, its consequences for the claimant and the injustice that would be caused to him if he were to be removed from this country are factors that have to be taken into consideration when deciding whether to grant discretionary leave to remain.
(1) Collins J in FH was not concerned with the issue of prioritisation and I do not think that the observation on which Miss Jones relies can be treated as being directed to the issue before me. The distinction which both he and Mr. Jay recognised between S-type and "ordinary" legacy cases is of course reflected in the prioritisation which they are already being given.
(2) It is evident that the "serious mishandling" sub-category of "truly exceptional cases" was not designed to accommodate an entire class such as the S-type cases. As Ms. Miles observes in her witness statement, if it were treated as applying to large categories of cases this would be self-defeating and would prejudice the CRD's ability to expedite truly urgent and exceptional cases.
(3) The ratio of Phansopkar has no application to the circumstances of the present case. The applicant in that case had an absolute right to enter the UK, subject only to being supplied with the necessary documents. In the present cases the Claimants only have a right to be considered for ILR, and there is a real chance that they will be held not to be entitled to it.
THE INDIVIDUAL CASES
My client has considered this case further and is of the view that it is exceptional based on its particular facts, including, in particular, the medical evidence submitted by the Claimant in relation to his mother's serious medical condition. My client is therefore prepared to prioritise this case accordingly and agrees to make a decision as soon as reasonably practicable and, in any event, within three months of today's date, if possible.
It would appear that this claim is therefore essentially academic. Nevertheless my client is of the view that it should remain as a lead case since it was selected as a lead case on the basis of it facts and in addition now provides a useful example to the Court of the type of case that is prioritised by the Secretary of State.
That assurance was acceptable to the Claimant and no relief is accordingly sought in his case, although it has remained formally before me for the reason given by the Treasury Solicitor.
Where the claimant has a close relative abroad who is seriously ill and there is nobody in the home country to care for the relative, and
You have seen medical evidence that the illness is serious and
You are satisfied that the ill person is a close relative of the claimant or is an adult dependant.
The guidance continues:
Close relatives are a parent, grandparent, child, grandchild, brother or sister. A serious illness might include a terminal illness, or a life-threatening condition, for example, a recent severe heart attack. An adult dependant may be someone with severe physical impairment who is over 18 years old and has nobody available care for them. You must see supporting medical evidence in every case.
Oddly, there is no reference to spouses, but it is plain that the guidance covers them also.
Finally, we have recently come to know that our client has received a medical report confirming that his wife is seriously ill and that she is receiving a medical treatment. A copy of the medical report dated 5th August 2007 confirming same is attached for your ease.
The attachments are not in fact a medical report in the conventional sense, and the copies supplied are imperfect. However they appear to show that a patient called F N, giving her husband's name as M I N (i.e. the Claimant's name), was admitted to the Department of Neurosurgery in the Hayatabad Medical Complex in Peshawar at the beginning of September 2007 on the basis that she was "mentally affected". The history stated on the discharge summary refers to her "mentally position" being "not good". Under the heading "condition at the time of discharge" the following appears:
I found that the patients had several family problems in the past. This mental condition has been seriously affected He is not seen his husband for the last eight years I advised his husband to come soon as possible because his wife is damaged to the brain .
For the following reasons it has been decided that your client's case is not exceptional.
It is considered that although a claim has been made that your client's wife in Pakistan is seriously ill, the evidence provided does not show that the illness is terminal or life-threatening, and that the person in question is a close relative.
The evidence, dated 10th April 2008, is not in the form of a medical report and does not provide a formal diagnosis or prognosis. It fails to explain what future treatment and care is needed, or the qualifications of the person who wrote the unsigned, hand written, note attached.
The evidence dated 3rd September 2007, is likewise absent a diagnosis or prognosis. It simply states that your client's wife is "damaged in the brain." This evidence contains reference to her "conditions at the time of discharge" indicating that the condition did not require her to remain in hospital.
Therefore even when taken at its highest, and with careful regard to the particular circumstances of your client's claim, the evidence is not sufficient to show that there are compelling circumstances in your client's case.
It is noted that your client first claimed to have a relative in need of medical treatment by way of a letter from yourselves dated 30th August 2007. This letter gave no details of the name, relationship or condition of the relative in question, however a subsequent letter from yourselves, dated 5th September 2007 stated "our client wishes to visit him." The Secretary of State was furnished with more details by way of a letter from yourselves dated 16th November 2007. This letter included medical evidence dated 3rd September 2007.
No explanation has been given as to how your client's wife came to be in Pakistan, what her status there is, how she is accessing medical treatment, how your client came to learn that she was in Pakistan, how contact was established, how the medical evidence itself reached your client. If your client were to claim that he encountered his wife during his trip to Pakistan in 2002 then it must be questioned as to why he failed to mention this fact at his appeal hearing; in fact despite the visa being a family visit visa, "the appellant denied having family in Pakistan and said that he just went there because he felt upset and it was easy to communicate with people there. I find this explanation unsatisfactory." [Adjudicator's determination 27th May 2004 paragraph 25.]
It is further noted that the patient is recorded as Fatima Niazi as being 25 years old, making her year of birth circa 1975. In 2008 this would make her 33 not 38 as indicated on the medical evidence.
Your client has also failed to provide any explanation as to how his wife came to be in Pakistan. His Asylum claim is mostly silent as to her, provided the above biographical details in the self completion questionnaire and only referred to her in his substantive Asylum interview briefly in answer to questions 52 & 53.
Q52 After you were injured and taken to Kabul did you the money?
A52 I gave it to my wife before I was taken back to hospital. When my wife returned to Kabul she had the money with her.
Q53 Who lived with you in your house in Charkar
A52 Just one brother, my mother, my kids & wife.
No explanation has been given as to why he never sought to have her and his children sent to join him in Pakistan before he journeyed on to the United Kingdom. There is no indication that he has actively sought to contact her or his children since he fled Afghanistan and nothing to show whether or not he did so when he visited Pakistan.
Therefore, considering the ease with which documents can be obtained in Pakistan [Country of Origin Information Report July 2008 Pakistan para 18.05 & 18.06] and having regard to the facts outlined in paragraphs 11-13 above, together with all the known facts of your client's claim, the evidence provided has not been accepted as independent corroboration of the claimed condition/illness.
In conclusion it is not considered there is an urgent need for your client to travel to Pakistan at this time such as to necessitate consideration of his outstanding application/submissions.
Finally, we have recently come to know that our client has received a medical report confirming that his mother is seriously ill and that she is receiving a medical treatment. A copy of the medical report confirming same Kuwait Hospital Peshawar, is attached for your ease.
The enclosed report was on the paper of the Kuwait hospital and reads as follows:
Dear respectful authorities
F R according to the registration Number 432/12 dated 25/09/2007 who was admitted at the Kuwait Hospital at the medical ward.
Although doctors have tried their level best, but, couldn't succeed in curing her. The patient is still sick, how ever she has no one in this country to take care of her.
The patient's condition is getting worst by the day pasts.
She is seriously sick and is in need of family member. She only has told us that she has a son by the name of the I R. Now she is suffering from depression.
Now we are asking her son that where ever he is. He should come to Pakistan to her mother because; her medical condition is getting worst.
We hope that her son will come to Pakistan as soon as possible.
Our client has provided a medical report from Cromwell Hospital confirming that his mother is seriously ill and he therefore needs to travel abroad as a matter of urgency. This medical report was provided by our client's friend, Mr Abdul Waheed Qazizada who recently travelled back from Pakistan. We enclose herewith a copy of the medical report and his passport copy confirming his journey dates.
A witness statement from the Claimant was also enclosed. This referred to the earlier report from the Kuwait hospital in Peshawar and complained of the failure of the Home Office to respond. The certificate from the Cromwell Hospital in Peshawar was in the following terms:
Dear Respectful Authorities
According to the registration number PA389/10 Dated 12 Feb 2008 F R who was admitted to Cromwell Hospital Medical ward.
Although doctors have tried their level best but, couldn't succeed in curing her. The patient is still seriously ill, how ever she has no next of kin to take care of her, the patient condition is getting worst by the day pasts. She is suffering from depression which makes her life harder to live.
She only has told us that she has a son by the name of I R who lives in England.
Currently her son friend Abdul Waheed Qazizada who recently visited us has brought some picture and film of her son which made her calm, mean while we ask her son that he should come to Pakistan to her mother because, her medical condition is getting worst.
We hope that her son will come to Pakistan as soon as possible.
It will be observed that the wording is remarkably close to that of the certificate from the Kuwait Hospital from September 2007.
For the following reasons it has been decided that your client's case is not exceptional.
5.1 It is considered that your client's case falls outside of the provisions of the Asylum Policy Instruction. Although a claim has been made that your client's mother abroad is seriously ill, the evidence provided does not show that the illness is terminal or life-threatening. It is noted that the letter from Dr Story of the Kuwait Hospital is vague, containing neither diagnosis nor prognosis. There is nothing in it to the nature of the patient's illness, the cause, or any treatment being provided. The letter does refer to the patient suffering from depression but the severity of the depression has not been clinically outlined, nor has it been made clear whether the depression was the primary reason for the hospitalisation or a secondary condition arising. Therefore, even taking this letter at its highest, the Secretary of State does not except that there are exceptional circumstances.
5.2 It is noted that the letter from Dr Story of the Kuwait Hospital is vague, containing neither diagnosis nor prognosis. It does not list his qualifications and is undated, although it does refer to the date of admission and was submitted with an airmail envelope from Pakistan (date of postage illegible). Considering the ease with which documents can be obtained [Country Information July 2008 Pakistan COIR para 18.05 & 18.06]. It has not been accepted as independent corroboration of the claimed condition/illness.
In conclusion it is not considered there is an urgent need for your client to travel to Pakistan at this time such as to necessitate consideration of his outstanding submissions.
The letter of 9th September makes virtually identical points about the letter of 23rd April, but it cross-refers also to the earlier report from the Kuwait Hospital.
In addition, our client recently received a letter via post from his family friend. The letter informed our client that his mother is suffering from a medical condition and therefore he wishes to travel abroad to see her. It is imperative that he receives the decision to his application as soon as possible so that he is able to travel abroad and is able to see his mother. We are enclosing the original medical report of our client's mother for your reference.
The enclosure is on the paper of a Dr. Said Abdul Habib (R), described as an "MD Internist (physician and paediatrician)". It is dated 17th September 2007. It reads:
Dear Mr. H W,
I want to inform you that your mother Mrs. J W is suffering Acute Myocardial Infarction and she receives [details of medication are then given, but they are indecipherable save that they include aspirin]. Now she needs you, because she is alone. Please visit her in the nearest future.
That certificate was referred to again in Malik & Malik's pre-action protocol letter dated 9th December 2007.
You have also claimed that your client's mother is seriously ill in Pakistan and is now lonely and would need the company of your client. Mr. H W has not provided substantial evidence to support his claim that his mother's condition is so severe as to warrant his return. His mother's claim to merely being lonely is not sufficient reason to warrant a grant of leave so that he can travel to visit her in Pakistan.
It is surprising that that letter does not refer explicitly to Dr. Habib's report, and the observation that the Claimant had not provided "substantial evidence to support his claim" might suggest that the Agency had not seen the report (either because it was not in fact enclosed or because they had overlooked it). On the other hand, the reference to the Claimant's mother being "lonely" appears to derive from that report. It seems probable therefore that the author of the letter had seen the report but did not regard it as "substantial". Although it would have been better if he had addressed its contents more explicitly, I cannot say that that is an unreasonable response. Although the reference to "acute myocardial infarction" might suggest a life-threatening condition, the remaining contents of the certificate are inconsistent with such a diagnosis; and the doctor appears to be a general practitioner rather than a specialist. There is no indication that the Claimant's mother has received any hospital treatment.
Our client has instructed us that his application for Judicial Review be expedited and the oral hearing be listed as soon as possible. This is in view of the fact that his mother is suffering from heart disease in Pakistan. He has also received a letter from the doctor who clearly suggests that his presence with is urgently required to assist her. This letter from Dr. Said Abdul Habib (R) is enclosed herewith for your reference, which clearly confirms the same.
Our client therefore, wants to travel to Pakistan to see her mother who has no one to look after her whilst she is suffering from this heart disease. We therefore, enclose herewith an application for urgent consideration form N463 duly completed requesting an oral hearing at the earliest possible in view of the fact that this matter needs early determination.
The letter was accompanied by a form N463 and was copied to the Treasury Solicitor. The letter from Dr. Habib which is referred to is dated 4th February 2008 and reads as follows:
Mr. H W, your mother is suffering from ischemic heart disease and she needs you. Please join her as soon as possible.
This is one of very few of the cases raising the issue of prioritisation based on R(S) where you have not in fact written to me or my colleagues previously raising the issue of your Client's need to travel apparently based on the medical health of a relative currently residing in Pakistan.
That was not of course correct, since Malik & Malik had submitted the earlier report to which I have referred. I was however interested in the observation that claims of this character were being made routinely in all or most of the S cases. Miss Jones told me that that observation was not correct. Her instructions from Mr. Saleem were that such applications had been made in only about ten or fifteen of the 35 or so S-type cases in which his firm was instructed.
40. On 6th May 2008 Malik & Malik replied purporting to enclose the missing materials. The Treasury Solicitor replied pointing out that they had sent the wrong enclosure. They have heard nothing since. The Secretary of State has not therefore had the opportunity to consider Dr. Habib's second letter.
Footnote: Permitting Applicants for ILR to Travel