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

A published policy governing grants of indefinite leave to remain must be applied rationally. Under the policy considered, “significant delay” meant delay longer than normal or reasonable which had a significant consequence. It did not require delay to be startling, prolonged or independently unlawful. Where the delay caused a refugee to receive limited rather than indefinite leave, that consequence was sufficient to make the delay significant when the other policy conditions were met. The policy remained discretionary: satisfaction of its conditions required reconsideration, not an automatic grant of indefinite leave.

The claimant, a Zimbabwean refugee, succeeded in an earlier asylum appeal. Following judicial review proceedings, a consent order restored the adjudicator’s decision on 17 June 2005. The Secretary of State subsequently granted five years’ limited leave under a policy introduced on 30 August 2005, rather than indefinite leave under the former policy.

The claimant challenged the failure to apply the published exception for cases involving significant Home Office delay. The central issues were when the obligation to grant leave arose, what constituted significant delay, whether the policy had been applied, and what relief was appropriate.

1. Timing of the obligation. The obligation to grant leave arose only when the appeal process was finally determined by the consent order. The earlier date of the adjudicator’s determination did not determine the applicable policy. The court adopted the reasoning in R (Yusuf & Others) v Secretary of State for the Home Department [2006] EWHC 3513 that time ran from receipt of the relevant decision.
2. Meaning of significant delay. “Significant delay” was not capable of precise definition. Delay meant more than the mere passage of time and implied a period longer than normal or reasonable. “Significant” required more than a minimal excess. The consequences of the delay were also relevant. Where delay produced a less advantageous form of leave, that consequence made the delay significant.
3. Application of the policy. The policy required consideration of whether the delay was out of step with comparable appeals, attributable to the Home Office, and had caused leave to be granted after the policy change when it otherwise would have been granted earlier. The 74-day delay satisfied all three conditions. It was significant both because of its duration and because the claimant lost the opportunity of indefinite leave.
4. The Secretary of State misdirected herself by treating “significant” as meaning “startling or prolonged”. That formulation wrongly equated significance with unlawfulness. The failure to apply the published policy was irrational and unlawful. The discussion of R (Mambakasa) v Secretary of State for the Home Department [2003] EWHC 319 (Admin) did not alter the distinct policy question.
5. The claim therefore succeeded to that extent. The Secretary of State was directed to reconsider whether indefinite leave should be granted in accordance with the published policy. Because the policy was discretionary, the court would not itself order the grant of indefinite leave. The defendant was ordered to pay the claimant’s costs, subject to detailed assessment if not agreed.

The judgment describes the claimant’s earlier asylum proceedings:

• Adjudicator: the claimant’s asylum appeal was allowed on 1 October 2003.
• Immigration Appeal Tribunal: the Secretary of State’s appeal was allowed on 25 May 2004 and the matter remitted for rehearing.
• Judicial review proceedings: a consent order signed on 17 June 2005 restored the adjudicator’s decision. The present claim succeeded in part, with reconsideration directed.