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

Where a person is excluded from refugee protection because of a serious foreign criminal offence but cannot safely be removed, periodic discretionary leave may be reasonable. A policy allowing settlement after a defined period must, however, be applied rationally and with regard to delay attributable to the authorities. Exceptional delay in deciding an immigration claim may therefore affect when the settlement period should be treated as beginning. Delay alone will justify judicial review only in exceptional circumstances, assessed in the factual and administrative context. Where a decision fails to consider material delay, the proper remedy is ordinarily reconsideration rather than an immediate direction to grant indefinite leave.

The claimant, an Iraqi national, was convicted of conspiracy to hijack an aircraft and was excluded from refugee protection under Article 1 F (b) of the Refugee Convention. He was nevertheless granted discretionary leave because removal would expose him to a real risk of treatment contrary to Article 3 of the European Convention on Human Rights.

His asylum claim was not determined for nearly seven years. After further periods of discretionary leave, he sought judicial review of continuing delay and challenged a decision granting only a further six months’ leave. The claim was amended after the Secretary of State made that decision. The central issues were whether the delay itself justified relief and whether it had to be considered when applying the policy governing settlement.

1. Policy on discretionary leave. The policy of granting six months’ discretionary leave at a time to a person excluded from refugee protection but protected from removal by human rights considerations was reasonable. Its purpose was to preserve regular review of whether removal had become possible. The policy also contained a reasonable settlement expectation after ten years of qualifying residence, subject to good conduct and individual circumstances. Time spent in prison did not count.
2. Effect of exceptional administrative delay. The Secretary of State had to consider the nearly seven-year delay in determining the claimant’s asylum claim when deciding whether the ten-year settlement period should be treated as having run in his favour. The failure to address that matter rendered the decision of 5 March 2009 flawed, irrational and an abuse of power. The court did not direct that indefinite leave be granted, although the claimant’s case might be close to the reasonable borderline.
3. Delay as an independent ground. Applying the approach in FH v Secretary of State for the Home Department [2007] EWHC 1571 (Admin), delay alone would justify judicial review only in exceptional circumstances. The existence of a very large administrative backlog meant that the claimant’s delay-based claim, considered independently, did not warrant relief.
4. Disposition. The claim was allowed only insofar as the decision of 5 March 2009 was declared subject to reconsideration in the light of the judgment. The Secretary of State was expected to deal with the matter as a priority and before the current discretionary leave expired. No declaration was granted that the original delay itself was unlawful, and there was no order as to costs.

This was a first-instance judicial review. Permission was granted on 18 August 2008. The claim was subsequently amended to challenge the Secretary of State’s decision of 5 March 2009. The court allowed the amended claim to the limited extent stated in the judgment.