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

Immigration decisions are generally governed by the policy in force when the decision is made. Earlier, more favourable policy does not ordinarily create a legitimate expectation that it will apply later. The Home Secretary retains a broad discretion over priority within a backlog programme and over the length of leave granted, subject to rational and lawful exercise.

Delay may become legally significant where serious maladministration causes a determinative loss of an earlier entitlement or policy outcome, but causation must be established. The duty to safeguard children’s welfare under section 55 of the Borders, Citizenship and Immigration Act 2009 requires case-specific consideration. The mere existence of children does not automatically require priority or indefinite leave to remain.

The claimants, an Ecuadorian family whose asylum claims had failed, sought judicial review of the Secretary of State’s decision in May 2012 to grant three years’ discretionary leave to remain rather than indefinite leave to remain. They alleged unreasonable delay, unlawful prioritisation and maladministration, a legitimate expectation arising from the former legacy policy, failure to comply with section 55 of the Borders, Citizenship and Immigration Act 2009, and unlawful fettering of discretion.

The claim principally concerned whether delay had deprived the family of the benefit of the earlier practice of granting indefinite leave, and whether the presence and residence of children required a different outcome.

1. Claim dismissed. The legacy programme addressed a backlog of failed asylum claims. It was not an amnesty and did not create a substantive entitlement to indefinite leave to remain.
2. Immigration decisions are ordinarily made under the rules and policy in force when the decision is taken. The earlier practice of granting indefinite leave did not create a legitimate expectation that a later decision would apply that practice, absent a specific promise or undertaking.
3. The Secretary of State was entitled to adopt priorities for processing backlog cases. Although the policy was reviewable for rationality, priority decisions involved a broad discretionary judgment. The length of leave was likewise for the Secretary of State, provided the discretion was exercised lawfully and with adequate justification.
4. The evidence did not establish that the administrative duplication in processing the claim caused the decision to be made after the July 2011 policy change. A sufficiently serious administrative failure causing determinative prejudice might in principle give rise to public-law unfairness, but that threshold was not met on these facts.
5. Section 55 required consideration of the children’s welfare on the particular facts. It did not mean that every case involving children required priority, a decision by a specified date, or indefinite leave. No specific welfare prejudice caused by the delay had been brought to the Secretary of State’s attention.
6. The discretion had not been unlawfully fettered. The decision was made on the information and submissions then available, and nothing showed that these children required indefinite leave rather than limited leave. The possibility of a stronger application based on later educational or welfare developments remained open at the next review.

The Secretary of State was awarded costs, subject to detailed assessment and the applicable publicly funded costs regulations.