Ajanaku, R (on the application of) v Secretary of State for the Home Department

A claimant cannot use judicial review to revive Article 8 arguments already determined through an available statutory appeal, since that would generally constitute an abuse of process.

Unfairness arising from administrative delay requires evidence that the delay caused the claimant to lose a legally relevant policy benefit. Where the policy is conditional on further factual enquiries, it is insufficient to show only that an earlier decision might have engaged the policy. Authorities concerning clear, case-specific unfairness caused by delay are distinguishable where the relevant policy would not automatically have produced the claimed benefit.

The claimant challenged the refusal of discretionary leave to remain. Her asylum application had been made while she was an unaccompanied minor, but was determined after she had reached 18. She argued that Home Office delay deprived her of the benefit of a policy concerning unaccompanied minors.

The defendant had separately considered her Article 8 claim. That claim was dismissed by an adjudicator, and reconsideration was refused by a senior immigration judge. The issues before the court were whether the Article 8 arguments could be reopened and whether the delay gave rise to unfairness amounting to unlawfulness or misuse of power.

1. Article 8 issue. The claimant had an available statutory appeal in which her Article 8 case was considered and dismissed. Any error in that decision should have been pursued through the statutory appeal and reconsideration process. It would therefore be an abuse of process for judicial review to revisit the Article 8 arguments.
2. Delay and policy. The court considered the substance of the remaining claim rather than its label. The relevant policy required applications from unaccompanied children to be handled promptly and contemplated exceptional leave where an asylum application was refused and satisfactory reception and care arrangements could not be made.
3. The evidence did not establish that the claimant’s application should have been decided before she turned 18. Nor did it establish that, had the necessary enquiries been made before that date, the result would have been that adequate reception and care arrangements were unavailable. The policy was conditional and did not automatically confer exceptional leave.
4. Authorities. Shala v Secretary of State for the Home Department [2003] EWCA (IV) 233 and Rashid v Secretary of State for the Home Department [2005] EWCA Civ 744 were fact-sensitive and distinguishable. They involved clearer evidence that delay or failure to apply a policy had caused the relevant loss.
5. The decision letter contained no error of law. The application for judicial review was dismissed.

The judgment describes earlier statutory proceedings concerning the claimant’s Article 8 claim:

• Adjudicator: appeal dismissed on 26 April 2005.
• Senior immigration judge: application for reconsideration refused on 16 June 2005.
• High Court (Administrative Court): judicial review claim dismissed.