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

A public authority unlawfully fetters its discretion if it defers a whole class of applications solely to meet an administrative target, without a principled assessment of the individual and group effects. That principle applies to procedural decisions as well as substantive decisions.

Where that illegality probably caused an applicant to lose the benefit of a former policy, the decision-maker must take the resulting injustice into account when later exercising a discretion to grant leave. The court may quash and remit the later decision for reconsideration on that basis. Delay alone, however excessive, does not ordinarily strengthen an Article 8 claim where the applicant has no potential right to remain under immigration policy.

The respondent, an Afghan national, sought asylum in 1999. His application was deferred with other pre-2001 claims while the Home Office prioritised later applications to meet a Public Service Agreement target. By the time his claim was determined, the policy under which a failed Afghan asylum seeker would ordinarily have received Exceptional Leave to Remain had changed.

Collins J in the Administrative Court held that delay alone did not establish an Article 8 claim, but granted relief on other grounds. The Secretary of State appealed the refusals of discretionary leave and the certificate under section 96(1) of the Nationality, Immigration and Asylum Act 2002.

The central question was whether the later decisions were unlawful because the earlier, target-driven deferral had deprived the respondent of leave which he would probably otherwise have obtained.

1. Appeal dismissed. The decisions were quashed and remitted to the Secretary of State for reconsideration. The expected consequence was a grant of indefinite leave to remain.

2. Carnwath LJ, with whom Moore-Bick LJ agreed, held that the indefinite deferral of pre-2001 asylum applications solely to meet targets applicable to later applications was unlawful. A public authority may not adopt a policy which prevents consideration of applications on their merits, or permit an agreement with another public body to dictate its treatment of applications. The principle applies equally to a procedural decision affecting a whole class of cases.

3. The evidence justified the conclusion, on the balance of probabilities, that the respondent would have obtained Exceptional Leave to Remain and later indefinite leave had his claim been considered in its ordinary turn. The Secretary of State had produced no evidence that his application would have been treated less favourably than comparable contemporaneous applications.

4. The court explained R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744 as concerning the correction, through the Secretary of State’s existing discretionary powers, of an injustice caused by earlier illegality. The court could not itself grant leave or assume the Secretary of State’s function. It could, however, hold that remedying the injustice was a legally material consideration and, in an extreme case, that only one reasonable exercise of discretion was available. This approach respected the requirement that asylum decisions be made by reference to current conditions.

5. Delay alone did not improve the respondent’s Article 8 position. He had no prima facie immigration right comparable to the claimants in the procedural-delay authorities. It was unnecessary to decide the separate issues concerning entry clearance facilities in Afghanistan or the correctness of the section 96 certificate.

• Court of Appeal (Civil Division): the Secretary of State’s appeal was dismissed in [2007] EWCA Civ 546. The refusals were quashed and remitted for reconsideration.
• Administrative Court: Collins J granted relief in the respondent’s judicial review. The Court of Appeal upheld that result on the respondent’s notice, but principally on the ground of unlawful fettering of discretion.