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

Where an immigration policy has been withdrawn before a decision is made, the decision must ordinarily reflect the law, facts and policy then current. A claimant seeking the benefit of the former policy must first show that its benefit was unlawfully withheld while it remained in force.

Past unlawfulness must then have caused such exceptional and conspicuous unfairness that no reasonable Secretary of State, having considered the need to correct the injustice, could refuse the requested leave. Lawful delay, administrative inefficiency and broadly expressed prejudice or detriment do not suffice. The court’s supervisory role remains limited.

A claimant must also act promptly. Delay in asserting the alleged entitlement will ordinarily be fatal. Different considerations may arise where the Secretary of State acted in deliberate bad faith.

Three unsuccessful asylum claimants appealed from the Administrative Court’s dismissal of their challenges to refusals of indefinite leave to remain. Each contended that errors or delay in determining his asylum claim had deprived him of four years’ exceptional leave to remain under a policy applying to nationals of Sierra Leone or Afghanistan. That leave would ordinarily have led to indefinite leave.

The Sierra Leonean claimant’s evidence form had been mislaid and his claim erroneously treated as non-compliant. One Afghan claimant was also initially treated as non-compliant, but his nationality was then investigated. The other was initially disbelieved about his Afghan nationality and received only one year’s leave after the policy changed.

The central issues were whether the former policy had been unlawfully withheld and, if so, whether the resulting injustice made the later refusal of indefinite leave conspicuously unfair and unlawful.

1. The appeals were dismissed unanimously. A decision made after the relevant immigration policy has been withdrawn is ordinarily governed by the law, facts and policy then current. The former policy applies only exceptionally: [1996] Imm AR 97 applied.

2. The court adopted a two-stage approach to claims founded on the loss of a former policy. First, the claimant must establish that the policy’s benefit was unlawfully withheld while it remained in force. Lawful administrative delay or inefficiency, even if serious or widespread, cannot ordinarily create an entitlement to have a withdrawn policy applied. Generalised fairness and broadly expressed prejudice, loss or detriment are insufficient.

3. Secondly, the court must ask whether the past illegality caused such conspicuous unfairness that the Secretary of State was legally bound to treat correction of the injustice as effectively determinative of the later application. If the Secretary of State has sufficiently considered the illegality and resulting injustice, she may refuse indefinite leave unless the case is so extreme that no reasonable decision-maker could do otherwise. The circumstances in which this threshold is met are very rare.

4. In S’s case, the erroneous non-compliance decision was legally unsustainable and deprived him of an opportunity to seek the policy’s benefit. The first stage was therefore satisfied. His challenge nevertheless failed because the resulting injustice was not sufficiently extreme and his claim was very considerably out of time.

5. In H’s case, the initial non-compliance error was short-lived and caused no material injustice. The Secretary of State was entitled to investigate his disputed nationality, and the policy’s benefit had not been unlawfully withheld. The later claim was also delayed.

6. In Q’s case, imperfections in the nationality assessment did not make it unlawful. A caseworker had to decide the evidence fairly and reach reasonable conclusions, subject to correction on appeal; the standard of an experienced social anthropologist was not required. Q’s claim was in any event hopelessly late.

7. Proceedings must be brought promptly after the relevant refusal. Delay will make conspicuous unfairness very difficult to establish and will ordinarily be fatal. The court left open cases involving deliberate bad faith.

1. Court of Appeal (Civil Division): Dismissed all three appeals unanimously and upheld the refusal of judicial review.
2. Administrative Court: Michael Supperstone QC, sitting as a Deputy High Court Judge, rejected the claims. He held that the former policies had not been unlawfully withheld in a manner producing conspicuous unfairness and that the claims were substantially delayed.