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

In a challenge to immigration delay based on Article 8, the claimant must establish that the delay caused material prejudice to the family-life case relied on. Where other factors were significant and the evidence did not show that the delay was the sole or main cause of the adverse family-court outcome, the delay could not found the claim. A finding that arrangements required by section 55 of the Borders, Citizenship and Immigration Act 2009 were absent did not, without more, establish that the particular delay was unlawful. No permission to appeal arose where the first-instance assessment disclosed no irrationality or other legal flaw.

The applicant challenged the Secretary of State's delay in deciding his request for reconsideration of a refusal of leave to remain in the United Kingdom as a parent. During the delay, family proceedings resulted in a special guardianship order in favour of the child's maternal grandparents and a contact order for the applicant. Leave was eventually granted, but he maintained that the delay was unlawful and sought damages.

On 4 July 2014, the Administrative Court dismissed the judicial review. It found a duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to make arrangements safeguarding children's welfare, but no unreasonable delay at common law and no Article 8 breach because the applicant had not shown particular detriment or substantial prejudice. The renewed application concerned whether the statutory finding made the delay unlawful and whether the delay had prejudiced his application to become the child's sole carer.

1. Application dismissed. The renewed application for permission to appeal was refused.
2. The substance of the claim was that the delay had prejudiced the applicant's Article 8 position in the family proceedings, especially his prospect of being appointed the child's sole carer.
3. The Administrative Court had found that section 55 imposed a duty to make appropriate arrangements safeguarding and promoting children's welfare. It had not found that the time taken to decide the application itself contravened section 55. The judge had also explained that the Secretary of State was responsible for determining what arrangements were required, and that the absence of arrangements was the alleged breach.
4. The critical issue was causation and prejudice. The Deputy High Court Judge was plainly entitled to find that the delay was not shown to be the sole or main reason why the applicant was not appointed sole carer. The social work report identified other significant factors, and the guardianship proceedings had not been challenged.
5. Laws LJ agreed with Vos LJ's refusal of permission on the papers. Even assuming that the delay resulted from a failure to make arrangements under section 55, the absence of Article 8 prejudice meant that the asserted claim could not arise. Reliance on Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406 did not establish the contrary. There was no irrationality or other flaw warranting permission to appeal.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was dismissed on 6 October 2015: [2015] EWCA Civ 1114.
• Court of Appeal (Civil Division), on the papers: Vos LJ refused permission to appeal.
• High Court (Administrative Court): On 4 July 2014, Deputy High Court Judge Clare Moulder dismissed the judicial review claim concerning the Secretary of State's delay.