Obienna v Secretary of State for the Home Department

A public authority’s standard acknowledgement letter may create an expectation of prompt consideration, but wording that applications are aimed to be dealt with within a period, or normally within a longer period, does not necessarily amount to a representation giving rise to conspicuous unfairness if the period is exceeded.

Applications must nevertheless be dealt with within a reasonable time. Where resources are finite, the court must respect the authority’s allocation choices, but must examine whether the system is rational, fair and consistently applied. A complete absence of a system, or a policy which ignores an existing backlog in favour of other objectives, may constitute an abuse of power.

The claimant had applied for indefinite leave to remain in February 2005 on the basis of long residence. The Home Office acknowledged the application, stating that 70 per cent of postal applications were aimed to be completed within three weeks and that applications would normally be dealt with within 13 weeks at most. The claimant’s application remained unresolved amid a substantial backlog.

After repeated unanswered correspondence and judicial review proceedings, the defendant produced evidence of changing systems for dealing with the backlog. The issues were whether the acknowledgement letter created a legitimate expectation and whether the defendant’s handling of the backlog was irrational, conspicuously unfair or otherwise an abuse of power.

1. Legitimate expectation. The acknowledgement letter did not represent that the application would be determined within a fixed period. The words indicating an aim and normal practice conveyed expectation rather than a binding representation. Failure to decide the application within 13 weeks therefore did not, without more, amount to conspicuous unfairness or an abuse of power.
2. Reasonable time and abuse of power. The claimant was entitled to have the application dealt with within a reasonable time. That requirement was flexible and had to be assessed in light of application volumes, available resources, fairness and consistency. The court had to respect the defendant’s responsibility for allocating finite resources, but had to examine whether the system producing delay was rational, fair and consistently applied.
3. The evidence showed three periods. Until May 2007 there was apparently no system for dealing with the accumulating backlog, and that absence was unlawful. Between May and December 2007 the defendant prioritised new and expedited cases, leaving older backlog cases effectively unattended; that was conspicuously unfair. From December 2007, dealing with the backlog chronologically was likely to be fair and consistent, provided it was sufficiently resourced to avoid excessive delay.
4. The court declined to make orders concerning superseded policies because doing so would give the claimant no practical advantage. It stressed that public administration should include responses to important correspondence, realistic information about waiting times, a point of contact, and transparency about whether the operative policy was being applied. Future claims based on delay should not automatically be treated as unarguable where the policy gives no indication when an application may be decided.