Novin v Secretary of State for the Home Department

Delay in determining an immigration or asylum-related application is not unlawful merely because it is lengthy. The court must assess whether the delay results from a rational, fair and consistently applied system, having regard to the volume of work, available resources and the differing circumstances of applicants. A claim may succeed where delay is manifestly unreasonable, falls outside the proper application of the policy, or causes particular detriment which the decision-maker has failed to alleviate. A coherent backlog policy may lawfully prioritise cases without strict chronological processing.

The claimant, an Iranian national whose asylum appeal rights had been exhausted, challenged the Secretary of State’s failure to determine his application for discretionary leave to remain. His case had been placed within the legacy backlog, with the aim of resolving such cases by 2011. He alleged unlawful delay, an unlawfully fettered discretion and a failure to expedite the case on compassionate grounds. Permission had been refused on the papers, and the claimant renewed the application orally.

1. Claim dismissed. Permission to apply for judicial review was refused.
2. The relevant question was whether the delay resulted from a rational system which was applied fairly and consistently. The assessment had to take account of the very large backlog, limited resources and the need for fairness between applicants.
3. The legacy policy was well established and logical. Although cases were not processed in strict chronological order, the policy was applied consistently and was fair in all the circumstances. The case did not disclose the very exceptional circumstances required for a delay claim of this kind.
4. The approach in R (FH) v Secretary of State for the Home Department [2007] EWHC 1571 (Admin) was applicable. The present case was indistinguishable from it. The decision in Obienna v Secretary of State for the Home Department [2008] EWHC 1476 (Admin) concerned a different cohort and materially different features, including the absence of an effective system for part of the relevant period.
5. The claimant’s family circumstances in Iran did not place him in a worse position than before and did not require expedition. The Secretary of State had therefore acted lawfully, and the renewed application failed.

Permission was refused on the papers by Stephen Morris QC, sitting as a deputy High Court judge, on 11 November 2008. The claimant renewed the application orally before the Administrative Court, which refused permission.