England and Wales High Court (Administrative Court) Decisions

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

		Priory Courts 33 Bull Street Birmingham West Midlands B4 6DS
		24th October 2013

1. MR JUSTICE LEWIS: ((1) etc number paragraphs) On 17th March 2011 the claimant, Mrs Tecle, applied for indefinite leave to remain in the United Kingdom. She had previously been granted limited leave to remain as a refugee. That application was made on 17th March 2011: that was over two-and-a-half years ago. After that, representations were made by those acting on her behalf who contacted the Home Office to chase matters. The claimant's Member of Parliament also wrote to the Home Office because the problems that Mrs Tecle was experiencing in being reunited with her husband who is in Italy pending the outcome of her application for indefinite leave to remain in the United Kingdom.
2. Eventually, on 27th November 2012 Mrs Tecle commenced judicial review proceedings. I heard the claim for judicial review this morning and I announced at the end of that judicial review that I was going to grant the claim for judicial review because of the unlawful delay on the part of the Home Office in processing Mrs Tecle's application on the 7th March 2011. I deferred giving my reasons for the judgment until 1.30 pm today. I did that for a simple reason: the only person in court to represent the Home Office was their counsel . There was no solicitor present and there was no representative of the Home Office present. I regret to say that I consider the way in which the Home Office has responded to this claim for judicial review and the way in which they have dealt with the court process is subject to severe criticism. It seemed to me appropriate in those circumstances because such serious criticisms could be addressed to the Home Office, that the representative of the Home Office (preferably the case officer in question) were given the opportunity to attend court, to hear the judgment and perhaps to have some understanding of the criticisms being made of the defendant department. Counsel has been able to arrange for the case officer concerned to be present in court.
3. Mrs Tecle applied for judicial review. There were effectively two grounds of judicial review. The first was that the delay in dealing with the application for indefinite leave to remain was so unreasonable in the circumstances as to be unlawful; that is it was so unreasonable that no reasonable department of State would have acted in that way. Secondly, Mrs Tecle contended that the effect of the way in which the Home Office had behaved caused a breach of her Article 8 rights. That arises in the following way. The claimant's husband is in Italy. He wishes to join his wife in the United Kingdom. She has been told that she will not be able to sponsor him coming to the United Kingdom until her application for indefinite leave to remain had been resolved and the claim form therefore is concerned to raise the issue that the delay in processing the application for indefinite leave to remain had a knock on effect on her ability to be reunited with her husband. Those were the two grounds of challenge.
4. The rules of procedure governing judicial reviews are that the defendant has 21 days to put in "an acknowledgement of service" setting out summary grounds of resistance. The defendant was unable to do that within 21 days and applied for an extension of time. That was granted. The next time for filing the acknowledgement of service was 7th February 2013. The Home Office, through its lawyers, did put in an acknowledgement of service but did not address the question of whether or not there had been unlawful delay. What it said was simply that the defendant had agreed to consider the claimant's application of the 17th March 2011 within 6 months, absent special circumstances.
5. The High Court made an order which granted permission to Mrs Tecle to apply for judicial, and it said this:

"The offer to deal with the case within 6 months is clearly inadequate given that the delay that has hitherto occurred and the service that was referred to in UKBA's letter of 27th March 2011. I have given speedy directions with a view to obviating further and unnecessary delay. They should be complied with in the light of the defendant's abysmal performance here hitherto."

That should have been a clear warning to the Home Office that the continued delay in responding substantively to Mrs Tecle's case was unlikely to be viewed by the court with favour.

6. On 7th May 2013 a further application from the defendant Home Office was considered this time for an extension of time to put in detailed grounds. Permission having been granted they were under a duty to file detailed grounds of defence. That should, at last, have explained the defendant's position in relation to Mrs Tecle's claim. They should also have served any evidence by that date and I will return to the evidence shortly.
7. On 7th May 2013 the High Court made a further order. It refused the Home Office's application for an extension of time for putting in detailed grounds. It said that they needed to be served within a particular time or the matter would proceed as if there was no defence. The reason for that order were as follows:

"The previous request for a stay for 6 months was considered and rejected by the court on 22nd March 2013 after a number of indulgences were granted by the court. The present application appears to be a repeat of the earlier request. The mere suggestion that the claimant may have committed a criminal offence in obtaining a grant of asylum on 27th March 2006 is not a sufficient basis to grant the order now sought. If there is a proper basis to the defendant's apparent challenge to the outstanding application for leave to remain it should be capable, now, of being formulated. Given the delay and the defendant's poor engagement of these proceedings, the good administration of justice requires that the proceedings no longer be subject to unjustified delay. If there is good reason to challenge the claim (and there may well be) the defendant must engage in these proceedings and file grounds of resistance, failing which the claimant will be determined in the absence of such grounds. It is a defendant's duty to file grounds of resistance, if any, by the extended date."

That was a clear indication to the Home Office that they really must comply with the rules of court, and permission for judicial review having been granted, deal with the claim of delay and Article 8. The Home Office really had to explain why the delay was not unlawful.

8. The detailed grounds of defence were lodged on 20th May 2013. They do not assist in understanding the timeframe, nor the reason for any delay. By way of example, paragraph 21, the defendant said:

"Since the grant of refugee protection to the claimant new information has come to light which is considered to be relevant to whether the claimant was entitled to protection as a refugee."

It refers to the information now available. Nowhere do you get any indication of when the information became available or how it related to the period of delay that had occurred in this case. Paragraph 23 says the defendant has now established that she may proceed in accordance with her consideration of cancellation or revocation of the claimant's refugee status but, again, it does not tell you when this position was arrived at.

9. Having been given a number of indulgences by the court, the court having made it clear that they were expected to address the terms of the claim, the Defendant simply put in a document which does not assist in enabling the court to understand why this claim was taking so long or when the Home Office had information which they said justified the steps that they were taking.
10. I gather there was an interview in June 2013. I gather that because I was told it by counsel for the Home Office this morning at the hearing. No evidence has been put forward by the Home Office at all in this case and certainly no evidence about that interview. Be that as it may, we have now reached October 2013. There is still no decision on Mrs Tecle's application, two-and-a-half years after the event. There is no explanation of the timeframe; and what if anything the Home Office was doing and when they did it. One of the most remarkable features of this case is the complete absence of any evidence from the Home Office in response to the claim. There is no witness statement from anyone involved telling the court what has happened. There is no documentary evidence from the Home Office explaining what has happened. The court is not even told the key dates of when information became available or when steps were taken, or decisions taken. I was told this morning that the Home Office had been alerted to the need for evidence and had been alerted at the very least to the need to have a time line and a statement of truth verifying it. For reasons that I do not know the Home Office has not provided evidence and not even provided a time line. That is not only truly remarkable for a department of State, it is not in accordance with the rules included in the law of England and Wales for dealing with claims. The well-known case of ex parte Huddlestone says that when a court grants permission to apply for judicial review, the public authority defendant must set out the facts and the underlying reasons for its decision or its actions. That is often referred to "as the duty of candour"; it is a very important duty. The courts rely on the co-operation of public bodies in operating the system of judicial review. If bodies like the Home Office do not comply with their duty of candour and do not provide the information and where appropriate documentary evidence, that creates a number of problems. One, is that the Home Office has not advanced any defence to the claim. That may prejudice the Home Office's case. They may lose because they have not explained what they have done. It prejudices the public interest because if decisions have been lawfully taken but they have to be quashed because of the failure to explain them that is not in the public interest. The Home Office's failure to do so is extremely regrettable. I will explain later in my judgment the relevance of the failure by the Home Office to perform its duties.
11. Returning to the underlying judicial review claim, the position here, as I say, is that the first ground of challenge is based on allegedly excessive delay amounting to unlawful delay. Counsel for the Home Office, very correctly, reminds me of the decision of Collins J in FH and Ors v Secretary of State for the Home Department[2007] EWHC 157. There, in the well-known passage, Collins J said that:

"... claims such as these based on delay are unlikely, save in very exceptional circumstances, to succeed and are likely to be regarded as unarguable. It is only if the delay is so excessive as to be regarded as manifestly unreasonable and to fall outside any proper application of the policy or if the claimant is suffering some particular detriment which the Home Office has failed to alleviate that a claim might be entertained by the court."

Counsel for the Home Office also reminded me of HB Ethiopia v Secretary of State for the Home Department [2006] EWCA Civ 1713. There the Court of Appeal noted that it was no function of the court to discipline or punish the defendant or in her department, and that it would not be appropriate to grant a party relief that would otherwise not be available just in order to express concern or censure administrative failings. I bear in mind it is not my role in dealing with the claim for judicial review to grant a remedy just because the failings on the part of the Home Office I bear in mind that it would have to be excessive delay, causing some particular detriment to the claimant which would be necessary to establish unlawful delay.

12. In my judgment, there is excessive delay here. I also consider that there appears to be detriment to the claimant. First, the delay here is prima facie excessive. It is two-and-a-half years since the application was made. In early February the defendant was talking about a decision within 6 months when she put in his acknowledgement of service and we are now at the end of October and there is still no decision. That delay, would, in my judgment, call for some form of explanation. Secondly, there has been no explanation by the Home Office of the delay at all. There is literally no evidence from the Home Office explaining what it is that has caused the delay. In circumstances where a defendant fails to provide an explanation, the court is entitled to draw the inference that the absence of any explanation means that there is no good explanation.
13. I fully accept that the Home Office will want to investigate matters and they might have wanted to investigate potential criminal offences. I am not addressing or dealing with the underlining merits of this particular immigration claim for indefinite leave to remain. But that is not the point. The challenge that Mrs Tecle brought was to the delay in dealing with the claim. The court has repeatedly made it clear, and the rules and the law make it clear, that the defendant is expected to explain the reasons relevant to its actions. The Home Office has failed to do so. In my judgment, the combination of the delay, together with the absence of explanation, leads me to the view that there has been an unlawful delay and there is no good reason for that delay.
14. I would stress that I am not here punishing the Home Office because of its repeated failures. It is simply a case of saying there appears to be unreasonable delay and there is no explanation to justify it. In those circumstances in my judgment there has been excessive and unlawful delay on the part of the Home Office.
15. There is a very real risk that this may be something that is causing detriment to Mrs Tecle because there is a suggestion in the papers, that her husband is not able to join her until her application for indefinite leave to remain is resolved.
16. Consequently I find that there has been unreasonable delay in this case. I am minded to grant a declaration to that extent and I will discuss with counsel and Mrs Tecle any other additional remedies such as a mandatory order requiring the Home Office finally to address this claim within a reasonable timeframe.
17. I turn now to the question of the Article 8 claim. Essentially that seems to be based on this position. Mrs Tecle's husband, is in Italy. It is being said in a number of documents that until Mrs Tecle's application for indefinitely leave to remain is resolved and she is granted indefinite leave to remain, if that is what happens, she cannot sponsor her husband's coming to the United Kingdom.
18. The skeleton argument, approved by the Home Office, says this about Mrs Tecle's claim that the delay is prejudicing her ability to be reunited with her husband:

"Although the claimant asserts the delay in making a decision upon her application for indefinite leave to remain in the United Kingdom means the claimant remains separated from her husband, the claimant has adduced no evidence of her relationship with Mr Birek Gherger, whom the claimant claims to have married on the 11th November 2008."

That Home Office authorised skeleton, read reasonably and fairly, indicates quite clearly that they do not yet accept that Mr Gherger is in fact the husband of Mrs Tecle.

19. At the beginning of today's hearing Mrs Tecle, who has naturally been considerably upset and concerned by these allegations and they have caused her very, very considerable dismay, produced for me a couple of documents which should have been well known to the Home Office. One document is a decision of the First-tier Tribunal Immigration and Asylum Chamber dated 23rd February 2011. That is an appeal by Mr Gherger against the refusal of entry clearance which was preventing him joining his wife in the United Kingdom. That appeal was allowed. The First-tier Tribunal believed and accepted that Mr Gherger was Mrs Tecle's husband. It found that it was disproportionate to stop him joining Mrs Tecle in the United Kingdom. Lest the Home Office say they had overlooked the First-tier Tribunal decision, I have also been provided with a document from the Home Office UK Border Agency. That deals with a refusal of entry clearance to Mr Gherger. The second paragraph of it says this:

"I have carefully considered your application. I am satisfied that you are married as claimed and that you appear to be in a genuine relationship."

20. It is very difficult for this court to understand how the Home Office can approve a skeleton, claiming that the claimant has not produced evidence of her relationship with Mr Gherger, who she says she has married, where official documents, some emanating from their own department expressly accept that she is married to Mr Gherger. It is frankly astonishing that a responsible department of State authorised such a statement to be made. As I say, it is one of a series of grave failures on the part of the Home Office which leaves the court seriously concerned that the Home Office has not treated this claimant properly or fairly, and that the Home Office has either not understood its obligations to the court or for whatever inexplicable reason has failed to comply with its obligation to the court.
21. I return to the position in relation to Article 8. If the position was that the unlawful delay was causing the problem about potential reunification on Mrs Tecle and her husband, that may raise an issue under Article 8. But as counsel for the Home Office pointed out if, as appears to be the case, there was an entry clearance granted to Mr Gherger to come to the United Kingdom, then in normal circumstances he would be allowed in and any problems about Mrs Tecle reuniting with her husband would not be the result of the delay. They would be the result of some other reason. Quite frankly if that was the case I would have expected the Home Office to have dealt with that in its evidence and detailed grounds in relation to the challenge. I have been shown a letter by Mrs Tecle from the International Operations Visa Section in Rome, dated 8th October 2012. It has "UK Border Agency" at the top left-hand corner. It says:

"Various attempts had been made to contact Mr Gherger to ask him for his travel documents but they had only managed to speak to him on 22nd March 2011. He said in the meantime he had lost his travel documents and Italian Residence Permit and recently obtained duplicates from the Italian authorities. He said he would contact us again to bring the document to the visa section as he needed to request leave from his employers."

22. Pausing there, if the problems were that Mr Gherger had lost his travel documents and Italian residence permit that would not be the Home Office's fault and they could not be blamed for any failure to reunify. The next sentence of the letter is perplexing. It says:

"The decision referred to colleagues in the UK for confirmation of the endorsement of Mr Gherger's entry clearance, as the appeal was allowed under Article HRA 1998. Mr Gherger was informed of this procedure. However ..... Mr Gherger was informed that we are unable to proceed until his wife's to leave to remain in the United Kingdom had been extended. Mr Gerger agreed to contact us again once this application had been approved."

That, on its face, appears surprising: if he has an entry allowing him to come to the United Kingdom, which he has obtained on the appeal, it is very difficult to understand at first blush why the UK Border Agency is saying that he must wait until Mrs Tecle's application to remain in the United Kingdom has been approved. The difficulty in this case is the Home Office have told us nothing: we do not know what their position is about the ability on the part of Mr Gherger to rejoin Mrs Tecle. The Home Office has not told us in their detailed grounds. They have not put in any evidence. It is frankly impossible for the court to reach any proper view on the allegation of the breach of Article 8. Although it is regrettable, and although it will cause great inconvenience to Mrs Tecle and further distress, there is little choice but to adjourn the Article 8 part of the claim to see if the Home Office can finally shed some light on whether or not there is a defence to Mrs Tecle's claim. I point out it also causes public expense and a waste of court time.

23. In summary, I uphold Mrs Tecle's claim for judicial review. I find that there have been unlawful delay on the part of the Home Office in dealing with her application for indefinite leave, which was made on 7th March 2011. I stress that I make no findings or comments at all about the underlying merits of her application or the original grant of refugee status; I am simply dealing with the delay, which is excessive and unexplained. Regrettably, I must adjourn the question of the alleged breach of Article 8 to enable the Home Office once again, to have further time to establish what the position is. I am minded to grant a declaration that the Home Office has acted unlawfully and I am minded, at the moment, to make an order requiring the claim to be dealt with in a time scale, but I will hear Mrs Tecle and counsel for the Home Office.