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

Where the Home Secretary’s extreme and unexplained delay causes an asylum seeker to lose the benefit of a more favourable policy, delay may amount to an injustice requiring corrective action. Delay alone is insufficient; there must be consequential disadvantage. The court applies a proportionality-based intensity of review. In assessing disadvantage, the court proceeds on the basis that the law should have been correctly applied at the earlier time, rather than assuming that the claimant would have suffered from an earlier misapplication of the law. The appropriate remedy may require the Secretary of State to reconsider whether exceptional indefinite leave to remain should be granted.

The claimant, an Ethiopian national of Eritrean origin, sought judicial review of the refusal to grant indefinite leave to remain. His asylum claim had been delayed for several years through administrative errors and inaction. By the time his appeal was determined, the Secretary of State’s policy had changed from granting indefinite leave to recognised refugees to granting five years’ limited leave.

The claimant’s appeal was allowed on refugee and human rights grounds after the Immigration Judge applied the Court of Appeal’s decision in EB (Ethiopia) v Secretary of State for the Home Department, [2007] EWCA Civ 809. The central issue was whether the delay had deprived the claimant of an advantage which he would have enjoyed had the law been correctly applied before the policy change.

1. The claim succeeded. The delay in processing the claimant’s case was extreme, unexplained and attributable to the Secretary of State. The relevant delay was not delay by the appellate authorities but delay in making an immigration decision capable of triggering an appeal.
2. Delay by itself does not establish unlawful unfairness. There must be consequential disadvantage to the claimant. The court applied the proportionality approach to intensity of review identified by Lord Steyn in Daly v Secretary of State for the Home Department, [2001] 2 AC 532, and the guidance in R (S) v Secretary of State for the Home Department, [2007] EWHC 51 (Admin).
3. The claimant had suffered the necessary disadvantage. Had the law been correctly applied before 30 August 2005, he would have been granted indefinite leave to remain. The court was not bound to assume that he would have been disadvantaged by a possible earlier misapplication of the law.
4. The proper course was to put the claimant in the position in which he would have been had the law been correctly applied before 30 August 2005. The Appeals Directorate was directed to reconsider whether indefinite leave to remain should be granted on that basis, subject to any exceptional countervailing consideration.
5. A quashing order and declaration were to be made. The claimant was awarded the costs of the claim, with detailed assessment of publicly funded costs. Leave to appeal was refused, although an application to the Court of Appeal was not discouraged.

This was a first-instance judicial review claim. Leave was granted by Lloyd Jones J. The judgment records an earlier consent order under which the claimant withdrew a previous judicial review application and the Secretary of State agreed to reconsider his asylum claim.