QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SAMUEL HAILEMARIAM||Claimant|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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John-Paul Waite (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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"Circumstances in which it may still be appropriate to grant ILR
Where a claimant is to be granted leave on or after 30th August, but we had previously undertaken to grant him or her ILR, we should honour that undertaking.
Where there has been a significant delay in actioning an appeal and that delay:
• is out of step with other appeals of a similar nature; and
• is for reasons attributable to the Home Office; and
• means that leave is being granted on or after 30th August when it otherwise would not have been;
then it may be appropriate to grant [indefinite leave to remain] instead of limited leave. Such a decision should not, however, be taken without consulting the AD [which I take to mean the Appeals Directorate] responsible for AIU [the Asylum and Immigration Unit]."
In the case of Samuel Hailemariam, the delays involved in the processing of his claim have been very substantial. Counsel for the Secretary of State, Mr JP Waite, prudently and correctly did not seek to minimise or to excuse it.
"... the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued."
As Lord Steyn there indicates, the intensity of review applicable in the present case is that of proportionality. The matter is revisited in circumstances more apt to the present case in the judgment of Collins J in R (S) v Secretary of State for the Home Department  EWHC 51 (Admin), at paragraph 24 . He there said:
"... I am not in a position to say that that [the delay] 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."
"... but for the Court of Appeal decision in EB, to which I refer below, and on which reliance was heavily placed by Mr Khubber [in that case, and in the present case, counsel for the claimant], my decision on this appeal would have been different. I would not have allowed the appeal."
What was said on behalf of the Secretary of State was that if this decision had been dealt with more timeously, then Mr Hailemariam would not have succeeded before the adjudicator, because the adjudicator, or any other person giving judgment, would have reached the conclusion that the claimant could not establish a claim to asylum on the basis that the Ethiopian authorities were unwilling to supply him with a travel document. He submits, therefore, that the decision in the present case did not deprive Mr Hailemariam of an advantage that he would have enjoyed had the decision been made timeously. This reasoning overlooks the fact that the advantage of which Mr Hailemariam was deprived was the expectation of receiving indefinite leave to remain, which would have been conferred upon him had he been recognised as a refugee before 30th August 2005. That would have been conferred upon him had the law been correctly applied, as the law has now been interpreted by the Court of Appeal in the case of EB.