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

Section 55 of the Borders, Citizenship and Immigration Act 2009 requires arrangements that safeguard and promote the welfare of children affected by immigration decisions. The duty extends to children in the United Kingdom whose parent is the applicant, not only to child applicants. It requires a case-specific timely approach, but does not automatically require expedition or priority over every other application. A lengthy delay is unlawful at common law only where the claimant establishes particular detriment which the Home Office failed to alleviate. Delay engages article 8 only where it causes substantial prejudice. The claim therefore succeeded on the section 55 arrangements issue, but failed on common-law delay, article 8 and damages.

The claimant challenged the defendant’s three-year delay in deciding his request for reconsideration of an application for leave to remain under article 8 ECHR. The delay continued while family proceedings concerned the care of his British son, who was subject to a child protection plan and later placed under a Special Guardianship Order in favour of his maternal grandparents.

The defendant issued a decision during the proceedings, so mandatory relief was no longer sought. The claimant sought declarations that the delay was unlawful under section 55 of the Borders, Citizenship and Immigration Act 2009, at common law and under article 8 ECHR, together with damages under section 8 of the Human Rights Act 1998.

1. Section 55 duty. The duty under section 55 of the Borders, Citizenship and Immigration Act 2009 extends to children in the United Kingdom affected by an adult’s immigration application. It is not confined to child applicants.
2. Timeliness. The defendant had accepted through the “Every Child Matters” policy that child applications should be handled in a timely way which minimises uncertainty. “Timely” does not mean that every child-related application must be expedited or prioritised. It requires a period appropriate to the circumstances of the particular case. Treating all reconsideration requests strictly in receipt order prevented that case-specific assessment.
3. Policy construction. Paragraph 2.20 of “Every Child Matters”, read in the context of the section entitled “Work with Individual Children”, concerned child applicants. It did not itself extend to adult applicants with non-applicant children in the United Kingdom. Nevertheless, the absence of arrangements for the latter category breached section 55.
4. Common-law delay. The three-year delay was considerable, but the court had to take account of the volume of reconsideration requests, limited resources and the fact that reconsideration required judgment rather than being a simple administrative task. Applying R (FH) v Secretary of State for the Home Department [2007] EWHC 1571 (Admin), the claimant had to show particular detriment which the Home Office had failed to alleviate. The evidence showed other significant obstacles to his becoming sole carer and did not establish that the delay was the sole or main reason for the outcome.
5. Article 8 and damages. The claimant did not establish substantial prejudice sufficient to make the delay an interference with article 8. The Special Guardianship Order was not final in the manner of an adoption order, contact continued and a later grant of leave could constitute a significant change of circumstances. No damages were therefore payable under section 8 of the Human Rights Act 1998.

The claim succeeded only to the extent that the defendant had failed to make arrangements required by section 55.

First-instance judicial review proceedings. Permission was granted on the papers on 11 July 2013. The defendant issued the reconsideration decision on 27 May 2014, removing the need for mandatory relief.