HG & Ors v Secretary of State for the Home Department

Applicants affected by an earlier unlawful asylum policy have no automatic right to immediate consideration or grant of indefinite leave to remain. The earlier unlawfulness is a material factor in the Secretary of State’s discretion, but the court may not assume that discretion or impose a particular timetable unless only one lawful outcome is reasonably open.

Where resources are limited, a very long delay may remain lawful if the Secretary of State operates a fair and rational system of priorities. Applicants are not entitled to super-priority merely because their cases involve past unlawfulness. Exceptional treatment may be required where genuinely compelling individual circumstances are established.

Six Afghan nationals sought judicial review of delays in considering representations for indefinite leave to remain. Their asylum claims had been delayed under a policy which the Court of Appeal had held unlawful in R (S) v Secretary of State for the Home Department, [2007] EWCA Civ 546. The Secretary of State accepted that similarly affected applicants should generally receive indefinite leave, subject to individual conduct and character checks.

The applications challenged the decision to place such cases in a priority category within the legacy asylum backlog rather than give them immediate or super-priority treatment. Individual claims also concerned requests for expedited consideration because of seriously ill relatives abroad.

1. Common issue. The applications were dismissed on the common issue. The decision in R (S) v Secretary of State for the Home Department, [2007] EWCA Civ 546, gave applicants a right to have their cases considered for indefinite leave to remain. It did not require consideration within any particular period.
2. A reasonable time is a flexible concept. It depends on the volume of applications, available resources and the circumstances and needs of different groups. A very long delay may be lawful where the Secretary of State has adopted a fair and rational system of priorities: R (FH) v Secretary of State for the Home Department, [2007] EWHC 1571 (Admin).
3. The earlier unlawful policy did not create an absolute right to indefinite leave or an absolute right to immediate relief. The court could not grant indefinite leave or assume the Secretary of State’s statutory discretion. It could require the Secretary of State to treat correction of the earlier injustice as a material factor. In an extreme case, the unfairness and remedy might be so clear that only one exercise of the discretion was reasonable.
4. The Secretary of State was entitled to treat S-type cases as a priority category without placing them ahead of all other cases in that category. Past unlawfulness was a material factor, but not an automatic basis for super-priority. The position of the Rashid cases also had to be considered, since they too involved alleged past unlawfulness. The exceptional-case guidance was not designed to apply to an entire class.
5. The ratio of R v Secretary of State for the Home Department, ex p Phansopkar, [1976] QB 606, did not apply. That case concerned an absolute right of entry, whereas the claimants had only a right to consideration for indefinite leave and might be refused.
6. In the individual cases, the Secretary of State had an adequate basis for concluding that the medical evidence did not establish genuinely exceptional circumstances. One case was accepted as exceptional and would be decided within three months. The other applications were dismissed.
7. The judge declined to determine, without adversarial argument, whether applicants might be permitted to travel temporarily without prejudicing their applications. He made no blanket finding that such an approach was unavailable.

First-instance judicial review proceedings. No appellate history is stated in the judgment.