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

An application for entry clearance by dependent relatives outside the Immigration Rules remains a recognised application where the published criteria require genuine dependency and compelling compassionate circumstances. A related fee-waiver request is sufficiently made where the underlying application, the request for exemption, and an evidential basis are clear. Administrative uncertainty or an application sent to the wrong official does not justify ignoring it where the receiving body should forward it or give proper guidance.

Where a decision is made or retaken after delay, it is generally governed by the law and policy in force at the time of decision. However, a broad statutory discretion cannot be unlawfully fettered by treating policy as exhaustive. Relevant exceptional factors must remain capable of consideration.

The claimants, Somali nationals living in Ethiopia, sought entry clearance to join a refugee sponsor in the United Kingdom. They applied as other dependent relatives outside part 11 of the Immigration Rules and sought exemption from the applicable fees.

Following changes in regulations, guidance, departmental responsibility and fee-waiver policy, the applications were not substantively determined. A letter dated 22 May 2009 treated the applications as ordinary Family Reunion applications within the Rules and stated that a fee waiver was unavailable. The claimants sought judicial review of that decision and of the delay in dealing with both applications.

1. The claim succeeded. The decision dated 22 May 2009 was quashed. The Secretary of State was required to consider the fee-exemption application and, if exemption was granted, the substantive entry-clearance application.
2. The applications were not applications under part 11 of the Immigration Rules. They were applications by other dependent relatives outside the Rules, based on genuine dependency before the sponsor’s flight and compelling compassionate circumstances. That was a recognised category created by the Secretary of State.
3. An application for fee exemption was made despite being addressed principally to the Entry Clearance Officer. The practical arrangements between the Entry Clearance Officer, UKBA and the Secretary of State, together with the correspondence, created a legitimate expectation that the request would be forwarded to the person with power to decide it or that the applicants would be directed appropriately.
4. A valid fee-exemption application required four matters: the nature of the underlying entry-clearance application; a clear request for exemption; an evidential basis; and the existence of a fee-waiver power. Those requirements were met. The application was capable of engaging whichever statutory or policy power was current when it was considered.
5. The 22 May 2009 letter did not answer the applications. It addressed an application which had not been made and failed to consider the fee-waiver power. The delay in dealing with the fee-exemption application was also unreasonable and unlawful.
6. Applying Odelola v Secretary of State for the Home Department [2009] UKHL 25 and EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, the decision had to be made under the law and policy in force when it was taken, not necessarily under the law or policy prevailing when it should have been made. The exception discussed in Rashid v Secretary of State for the Home Department [2005] EWCA Civ 744 did not apply because there was no abuse of power.
7. The current policy could guide the exercise of the discretion, but could not exclude relevant matters outside the policy altogether. The Secretary of State had to consider, among other potentially relevant matters, the claimants’ alleged destitution, the effect of delay on the substantive Family Reunion application, and whether insisting on fees was justified where the system had failed to operate as intended.
8. The claimants were awarded costs up to and including 22 September 2010, with each side bearing its own subsequent costs. Detailed assessment of publicly funded costs was permitted.