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

Administrative delay does not make a later immigration decision unlawful merely because an earlier decision might have produced a more favourable outcome. Without a promise or commitment to decide by a particular date, the Secretary of State may apply the policy in force when the decision is made. Where a published policy grants discretionary leave outside the Immigration Rules, there is no general obligation to grant indefinite leave instead or to give reasons for declining an exceptional departure from that policy. Delay, length of residence and family or human-rights factors do not by themselves require such a departure. A decision made consistently with the applicable policy will not ordinarily be impeached because its letter does not set out reasons or record the internal decision-making process.

The claimant applied in May 2007 for leave to remain on human-rights grounds after living in the United Kingdom for many years with her son. The Secretary of State eventually granted three years’ discretionary leave outside the Immigration Rules in February 2012, applying the policy introduced in July 2011. The claimant sought judicial review, arguing that the delay had caused an unlawful historic disadvantage, that she should have received indefinite leave to remain under the earlier practice, and that the decision-maker had failed to consider an exception to policy. The central issues were whether the delay was unlawful, whether the claimant was entitled to a different form of leave, and whether the decision was irrational or inadequately reasoned.

1. The claim was dismissed. The delay did not constitute an unlawful omission. There was no binding commitment to decide the claimant’s case by a particular date. Even if the delay had been unlawful, the appropriate remedy would have been an order requiring a decision, not quashing a later decision made under current policy.

2. The principles in R (S, H & Q) v SSHD [2009] EWCA Civ 142, R (Shah) v SSHD [2013] EWHC 2206 (Admin), R (Geraldo, Aroun and Iqbal) v SSHD [2013] EWHC 2763 (Admin) and Hamzeh & Others v SSHD [2013] EWHC 4113 applied. Administrative delay, without more, does not create an entitlement to the benefit of an earlier policy.

3. The claimant had no entitlement to indefinite leave to remain. The July 2011 policy lawfully provided for a maximum of three years’ discretionary leave where removal was inappropriate. The factors relied upon, including long residence, family ties, the claimant’s son’s position and Article 8 considerations, were ordinary factors relevant to the policy and did not establish an exceptional case requiring departure from it.

4. Following R (Mohammed) v SSHD [2014] EWHC 98 (Admin), adherence to the published policy meant that the Secretary of State was not obliged to give reasons for refusing an exceptional grant of indefinite leave. The absence of reasons in the decision letter, or of a written internal record, did not justify an inference that relevant matters had been ignored.

5. The claimant’s criminal convictions and unlawful immigration history were substantial adverse factors. The decision-maker was entitled to balance them against the countervailing circumstances and grant discretionary leave. The decision was neither legally unfair nor manifestly irrational.