RN v Secretary of State for the Home Department

A Strasbourg finding that removal would breach Article 3 prevents removal while the relevant risk persists. It does not itself prescribe the domestic legal basis for continued stay or require a grant of leave to remain.

Administrative delay is unlawful only after considering its consequences and all the circumstances. There is no fixed period after which delay is unlawful. A claim based on historic injustice or conspicuous unfairness requires illegality, rather than mere maladministration, and a causal link to the loss of protection.

Inclusion in the Legacy Scheme conferred no additional substantive right. A repealed rule could not be invoked merely because a legacy case might earlier have been considered under it.

RN had obtained a Strasbourg judgment that his removal to Sri Lanka would then breach Article 3. The Secretary of State subsequently considered granting him six months’ discretionary leave, but he absconded before the decision was served. Following changed conditions in Sri Lanka, the Secretary of State decided in December 2012 to refuse asylum and remove him.

Burnett J dismissed RN’s judicial-review claim: [2013] EWHC 2383 (QB). RN appealed, contending that delay and conspicuous unfairness had unlawfully deprived him of indefinite leave to remain, or alternatively that the Legacy Scheme required consideration under Paragraph 395C. A separate appeal to the First-tier Tribunal against the removal decision had been stayed pending these proceedings.

1. Appeal dismissed. The court unanimously upheld Burnett J’s dismissal of the judicial-review claim.

2. The Strasbourg judgment established only that removal to Sri Lanka would then breach Article 3. Its enforcement internationally was not a matter for the domestic court. Nor did it determine the legal basis on which RN should remain in the United Kingdom. The grant of leave remained for the Secretary of State, subject to ordinary judicial oversight.

3. Delay after an established protection claim may be unlawful, but legality depends on the whole circumstances and the consequences of delay. The straightforward cases in which a status had to be granted by a simple administrative act did not establish a general six-month limit. RN’s conviction, registration as a sex offender, and further suspected misconduct required a substantial and sensitive assessment of the form of leave.

4. The processing should have been faster, but it did not exceed maladministration and become unlawful. The Secretary of State had decided in principle to grant discretionary leave before the end of the Sri Lankan civil war. RN then absconded. He failed both to establish unlawfulness and to show that delay caused the loss of protection to which he was entitled. Had he remained available, discretionary leave would have been renewed until it was later refused on the same basis as the December 2012 decision.

5. The Legacy Scheme was administrative and organisational. It was not an amnesty and created no more favourable substantive policy. Paragraph 395C of the Immigration Rules was applied holistically while it remained in force, both within and outside the scheme. Its repeal prevented reliance on it merely because RN technically fell within the legacy cohort. In any event, his immigration history, criminal record and registration as a sex offender made a favourable outcome under that paragraph unlikely.

• Court of Appeal (Civil Division) Dismissed RN’s appeal.
• High Court, Administrative Court Burnett J dismissed RN’s application for judicial review: [2013] EWHC 2383 (QB).