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

Administrative delay and broken promises do not, without more, turn maladministration into illegality. The Secretary of State may generally apply the policy and rules in force when the decision is made. There is no general administrative-law principle requiring the earlier, more favourable outcome that might have resulted from a prompt decision. Whether delay is unlawful depends on the particular facts, including detention, reliance and specific prejudice. Delay affecting a person living in the community will not ordinarily be unlawful where it has not caused distinct prejudice and may have strengthened the underlying claim.

The claimant, an Indian national whose asylum and earlier spouse application had failed, challenged a December 2012 decision rejecting his human-rights and discretionary leave representations. He relied on substantial delay and two unfulfilled promises to consider or review his case promptly. By the hearing, the removal directions had been cancelled and the Secretary of State had agreed to reconsider the matters and any further submissions. Only the challenge alleging irrationality and unfairness remained.

1. The challenge failed. The remaining grounds were academic because the removal directions had been cancelled and the Secretary of State had agreed to reconsider the relevant matters.
2. The Secretary of State was entitled to apply the Immigration Rules in force at the date of the decision. The court adopted the conclusions discussed in Geraldo & Others v Secretary of State for the Home Department [2013] EWHC 2703 (Admin) and distilled through Shah v Secretary of State for the Home Department [2013] EWHC 2206 (Admin).
3. Maladministration becomes unlawful only where the delay is so unreasonable as to amount to administrative illegality. There is no bright-line period of delay, and each case depends on its facts. A person cannot ordinarily claim the benefit of a more favourable decision merely because delay allowed the applicable rules or policies to change.
4. The promises to consider the case out of turn and to aim to review it within one month were not fulfilled. However, the claimant was not detained, did not show reliance or specific prejudice, and the delay had allowed him to remain in the United Kingdom and could only have strengthened his Article 8 claim. Neither the overall delay nor the broken promises therefore crossed the threshold into illegality.
5. The parties were directed to agree the appropriate order where possible. Written submissions on the order or costs were to be filed within 28 days, with determination on paper unless an oral hearing was requested.