FH & Ors, R (on the application of) v Secretary of State for the Home Department

An immigration application must be determined within a reasonable time, but reasonableness depends on all the circumstances. Delay is unlawful only where the administrative system or its application is irrational under the Wednesbury standard.

Limited resources may inform whether a delay is reasonable. They cannot excuse an unacceptable delay. The court examines whether resources are allocated through a rational, fair and consistently applied system, while respecting the executive's responsibility for setting priorities.

A delay claim will ordinarily require exceptional circumstances. It may succeed where the delay is manifestly unreasonable and falls outside a proper application of policy, or where the applicant suffers particular detriment which the authority has failed to alleviate.

Ten claimants sought judicial review of delays in determining applications for leave to remain, alleged fresh asylum claims, human rights claims or applications to extend discretionary leave. They sought declarations that the delays were unlawful and orders requiring immediate decisions.

Most had previously been refused asylum and had exhausted their appeals without being removed. SI and ZW retained leave by statutory extension while their applications were pending. FH's case was accepted for exceptional treatment during the proceedings. H had an undetermined human rights claim dating from 2002.

The central issue was whether the delays resulted from an irrational or unfair system and were therefore unlawful.

1. Disposition. H's outstanding human rights claim was to receive immediate consideration together with his marriage approval application. The remaining claims were dismissed, FH's claim having ceased to be pursued after the Secretary of State agreed to treat it exceptionally. Permission was granted in the rolled-up hearings concerning A and K, but their substantive claims were dismissed.

2. The Secretary of State was under an implicit obligation to decide immigration and asylum applications within a reasonable time. Reasonableness was flexible and depended on the nature of the claim, the applicant's circumstances, the volume of work, the available resources and the fairness and consistency of the system. No fixed period, including 12 months, constituted a benchmark.

3. A delay was unlawful only if it failed the Wednesbury standard by resulting from irrational action or inaction. A rational system for allocating finite resources, applied fairly and consistently, could demonstrate that delay was not unlawful. Resources could therefore be considered when assessing reasonableness, although a mere assertion of insufficient resources could not excuse delays already found unacceptable. The court could examine the rationality of the system but could not substitute its preferred allocation of public resources.

4. Fairness was relevant because a delay produced by an unfair decision-making process was likely to be irrational. An apparently unfair result did not itself establish unlawfulness where a reasonable explanation existed. The present prioritisation system did not reproduce the arbitrary postponement condemned in Secretary of State for the Home Department v S [2007] EWCA Civ. 346.

5. It was rational to prioritise initial asylum claims over alleged fresh claims made after an initial refusal and unsuccessful appeal. Although the delays were undesirable, they were not, except in H's case, so excessive as to be unlawful. H's five-year-old, undetermined human rights claim resembled an initial claim and made his case exceptional.

6. Delay claims of this kind were unlikely to be arguable except in very exceptional circumstances. A claim might be entertained where the delay was manifestly unreasonable and outside any proper application of policy, or where particular detriment had not been alleviated. As a matter of good administration, the Home Office should communicate expected delays and minimise avoidable prejudice concerning support, work and short journeys abroad.

This was a first-instance judicial review of administrative delay. Most claimants had previously received adverse asylum decisions and unsuccessful appellate determinations, but had not been removed. SI and ZW had succeeded before the appellate authority under Article 8 of the European Convention on Human Rights and had received discretionary leave, which they sought to extend.