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

A family concession policy directed at families seeking asylum and persons not entitled to remain does not ordinarily apply to a person whose family circumstances fall outside that purpose. Delay in determining an immigration application is assessed by reference to the period relevant to the application under consideration, rather than automatically by reference to the entire immigration history. Although delay may be regrettable, it becomes arguable as a ground for expedition only where the circumstances are exceptional. The exceptional category of a case that has been seriously mishandled or wrongly decided concerns an acknowledged incorrect decision requiring correction; it is distinct from an ordinary case involving error or delay.

The claimant, whose asylum claim had been refused and whose family included a British spouse, children and a stepchild, sought judicial review of the Secretary of State’s failure to decide an application to reconsider refusal of indefinite leave under a family concession policy. He also challenged the refusal to expedite consideration of his case under the legacy programme.

Permission had previously been refused on the papers by Wyn Williams J. Beatson J heard the renewed application. The issues were whether the family concession policy arguably applied and whether the delay, family circumstances and personal difficulties made the failure to expedite arguably unlawful.

1. Family concession policy. The policy was directed to families seeking asylum and to persons who were not otherwise entitled to remain in the United Kingdom. Its reference to indefinite leave for dependants and its purpose, as explained in LA Serbia v Home Secretary [2008] UKHL 42 at paragraph 38, showed that it addressed problems arising from attempts to remove families. The claimant’s contrary construction was unarguable.
2. Delay and expedition. The relevant delay was the period since the application to reconsider the family concession decision, not the whole period since the claimant’s original asylum application. The delay was regrettable, but the pressures arising from uncertain immigration status and family life did not, without more, make the case exceptional.
3. The claimant’s reliance on R (Tekle) v Home Secretary [2008] EWHC (Admin) by analogy did not establish an arguable case. The circumstances in that authority, concerning an over-broad restriction on employment during a lengthy decision period, did not make the present delay arguable on the material before the court.
4. The exceptional category identified in the defendant’s indicative policy list for cases that had been seriously mishandled or wrongly decided was narrow. It concerned a case in which the Border and Immigration Agency accepted that it had made an incorrect decision and needed to correct it. An error case was not the same as a mishandled case. The claimant’s case was not arguably within that category. The renewed application for permission was therefore refused. No order for costs was made.

Permission for judicial review had previously been refused on the papers by Wyn Williams J on 10 November 2008. The renewed application was refused by the Administrative Court.