Jaferi, R (On the Application Of) v Secretary of State for the Home Department

In a challenge to delay in determining an immigration application, general maladministration is insufficient. The claimant must show maladministration specific to the individual case and causative of an injustice warranting judicial intervention. Delay may be material where it causes an application to be decided under a later, less favourable policy rather than the policy applicable before the change. A public authority which expressly treats an application as a legacy case should normally be held to that position. Repeated requests for documents already supplied may be capable of amounting to maladministration, even without proof that the documents were lost. The grant of permission concerned only an arguable, fact-sensitive challenge and did not establish any general entitlement to indefinite leave to remain.

The claimant, an Afghan national who arrived in the United Kingdom as an unaccompanied child, was granted discretionary leave after his asylum claim was refused. His application for an extension of discretionary leave was made in August 2009. The defendant treated it as a legacy case but repeatedly requested photographs and did not decide it until December 2011, after a policy change under which he received three years’ discretionary leave rather than potentially indefinite leave to remain.

Permission had previously been refused. The renewed application was adjourned pending decisions in similar cases, including R ota Geraldo v SSHD [2013] EWHC 2763 (Admin). The issue was whether the claimant had an arguable individual challenge based on maladministration, delay, and the loss of the opportunity to have his application decided under the earlier policy.

1. Permission granted. The claimant established an arguable challenge to the particular decision refusing indefinite leave to remain. The court emphasised that the case concerned individual facts and was not a generic challenge by legacy applicants who received less than indefinite leave.
2. The principles identified in R ota Geraldo v SSHD [2013] EWHC 2763 (Admin) remained relevant. A challenge based merely on general departmental maladministration was insufficient; something specific to the claimant, causing an injustice of a kind warranting intervention, was required. This case was arguably distinguishable because the defendant had requested photographs on three occasions and had given no convincing explanation for the repeated request.
3. The claimant’s case did not depend on proving that the department had lost the photographs. It was equally arguable that maladministration occurred if the decision-making process was delayed by an unnecessary duplicate request for information already held.
4. The defendant’s May 2010 letter stated unambiguously that the application would be treated as a legacy case and set out the applicable criteria. In the absence of any suggested lack of authority or exceptional reason, the public authority should be held to that position.
5. The relevant prejudice was the loss of the opportunity to receive a decision under the former policy. Applying the reasoning in R ota Geraldo v SSHD [2013] EWHC 2763 (Admin) at [121], it was certainly arguable that a pre-July 2011 legacy decision not to remove the claimant would have resulted in indefinite leave to remain, absent a countervailing factor. No such factor was suggested.
6. The parties were directed to consider consequential directions promptly, including evidence and detailed grounds, possible transfer to the Upper Tribunal, and arrangements for an expedited final hearing.

Not an appeal. The renewed application for permission followed an earlier refusal of permission on 4 September 2012. The substantive judicial review remained to be determined.