Mrs A, R (on the application of) v Secretary of State for the Home Office

In exceptional circumstances, inordinate and unexplained delay by the Secretary of State in deciding an immigration application may make removal disproportionate under Article 8, even where the applicant cannot identify conventional prejudice. The longer a genuine family life is allowed to become established in the United Kingdom, the greater the interference caused by removal. A temporary removal to enable an application to be made from abroad may be unnecessary where the Secretary of State’s own culpable delay has created the circumstances relied upon. Immigration decisions must be made within a reasonable time unless there is a good excuse.

The claimant, a Jamaican national, sought judicial review of the Secretary of State’s refusal to grant her leave to remain on the basis of her marriage to a British citizen. She had made and withdrawn a dishonest asylum claim before applying to remain as a spouse. The spouse application remained undecided for about 22 months, despite an indication that it would be screened within five weeks or that progress would be reported. During the delay, the claimant’s genuine marriage and family life became more established in the United Kingdom. The central issue was whether removal, followed by an application to return from Jamaica, would be disproportionate under Article 8.

1. Claim succeeded. The Secretary of State’s decision was set aside, the removal directions were quashed, and the Secretary of State was required to reconsider the matter in accordance with the judgment. Costs were payable, subject to detailed assessment if not agreed.
2. The delay of nearly two years was excessive, inordinate and inexcusable. The Secretary of State had produced no evidence explaining it, and the court was entitled to infer that there was no good excuse.
3. The claimant’s dishonest asylum claim and precarious immigration position were relevant adverse matters. Ordinarily, the need to maintain effective immigration control would justify removal. They did not, however, outweigh the exceptional effect of the Secretary of State’s own delay.
4. Following the approach in Secretary of State for the Home Department v Akaeke [2005] EWCA Civ 947, delay may itself render removal disproportionate under Article 8, even without conventional prejudice. The establishment of family life and roots during the delay was materially relevant. Removal would in substance be a temporary step to permit an application from Jamaica, and that exercise was unnecessary in the circumstances.
5. The Secretary of State must make decisions within a reasonable time unless there is a good explanation. In this case, removal was disproportionate and therefore unlawful having regard to Article 8.