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

Excessive administrative delay does not, by itself, make a later immigration decision unlawful or create an entitlement to leave that would have been granted had the application been decided earlier. A legitimate expectation requires an unambiguous promise or established practice. Nevertheless, public authorities must act fairly, and conspicuous unfairness may constitute an abuse of power. Delay may become decisive where removal would require an applicant to undertake a further procedure that is practically unavailable, particularly when the delay has enabled private or family life to develop. In such circumstances removal may be disproportionate, although the court need not confer indefinite leave to remain. A certification preventing an appeal is unlawful where the relevant facts have not been properly investigated and there are arguably valid reasons why the matter was not raised earlier.

The claimant, an Afghan national, entered the United Kingdom in 1999 and claimed asylum. The Home Office did not interview him until March 2004 and then refused his claim. He had also made later applications relying on private life, a relationship with a British citizen and plans to work or establish a business.

The claimant argued that the delay deprived him of the benefit of policies concerning asylum and exceptional leave to remain, amounted to an abuse of power, made removal disproportionate under Article 8, and invalidated certification under section 96(1) of the Nationality, Immigration and Asylum Act 2002. The central issues were whether delay entitled him to indefinite leave to remain and whether removal and certification were lawful.

1. Legitimate expectation and fairness. The White Paper did not contain an unambiguous promise that asylum applications would be decided within a particular period. Political aims and administrative targets were insufficient to create an individual legitimate expectation. Public authorities must nevertheless deal fairly with individuals, and a sufficiently serious case of conspicuous unfairness may amount to an abuse of power.
2. Effect of delay on leave. The claimant was not entitled to indefinite leave to remain merely because, if his application had been determined earlier, he might have received asylum or four years’ exceptional leave to remain under the policies then operating. The Refugee Convention and the Ravichandran principle required assessment of protection at the date of decision. Delay alone, even where excessive, did not establish the exceptional unfairness required to put the claimant in the position he would have occupied had the application been decided timeously.
3. Article 8 and removal. Delay may increase the factual strength of private or family life, but its effect depends on the circumstances and the proportionality assessment. Delay alone was insufficient here. However, the Secretary of State had directed the claimant to return to Afghanistan to obtain entry clearance when the British Embassy there had no facility to issue it. The excessive delay, coupled with the serious practical obstacles to obtaining entry clearance, made removal unlawful. The claimant was entitled to remain to make the necessary application based on his proposed marriage and plans to work or establish a business, but not to indefinite leave to remain.
4. Certification. The certification under section 96(1) was unlawful. The Secretary of State had rejected the asserted relationship on facts that had not been properly investigated, and there were arguably valid reasons why the matter had not been raised before the adjudicator. If the claim were refused, the claimant was entitled to an appeal.
5. The removal directions and the certification were quashed. The Secretary of State was required to reconsider the claim in the light of the judgment.

First-instance judicial review in the Administrative Court. The judgment records earlier decisions by an adjudicator and the Immigration Appeal Tribunal, but this was not an appeal from a reported judgment of a higher court.