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

A public authority may defer deciding an application for indefinite leave to remain while related tribunal proceedings determine facts or legal issues materially relevant to that application. Whether the deferral is lawful depends on the particular circumstances, including the expected timing and value of the tribunal determination, the allocation of public resources, and any prejudice to the applicant.

Statements indicating that a decision will be made within a particular period may create an expectation, but the expectation is not absolute. A later change of course may be lawful where a distinctive factual development provides good reason for awaiting the related proceedings. The court reviews whether the authority was entitled to defer the decision and whether the deferral was reasonable; it does not substitute its own view of the preferable administrative approach.

The claimant, an Egyptian national excluded from refugee protection under Article 1F of the Refugee Convention and unable to return because of Article 3 concerns, challenged the Secretary of State’s failure to decide his application for indefinite leave to remain while related asylum proceedings continued.

Permission was granted in relation to the amended ground alleging breach of a legitimate expectation arising from correspondence and policy, and unreasonableness in deferring the decision. The claimant argued that the Secretary of State had undertaken in April and May 2013 to decide the application shortly. The Secretary of State maintained that the tribunal’s determination of the Article 1F issue was materially relevant and should be awaited.

1. Claim dismissed. The challenge based on legitimate expectation and unreasonableness failed on the particular facts.
2. The correspondence in April and May 2013 gave rise, for a short period, to an expectation that a decision on indefinite leave to remain would probably be made by 29 July 2013. That expectation was qualified when the claimant was informed in June 2013 that the Secretary of State considered it preferable to await the tribunal’s determination of the Article 1F issue.
3. The Secretary of State was entitled to defer consideration. The tribunal proceedings concerned matters highly relevant to the application. A successful asylum appeal would have placed the application in a materially different position from an unsuccessful appeal. Concentrating resources on the tribunal proceedings could also avoid wasted public expenditure.
4. The question was highly fact-sensitive. The court was not required to determine the preferable administrative approach. It had to decide whether, in the circumstances, the Secretary of State was entitled to defer the decision and whether that approach was reasonable. Neither ground of challenge was made out.
5. The claimant remained lawfully in the United Kingdom under the automatic extension provided by Immigration Act 1971, section 3 C, and there was no question of removal. The delay therefore did not materially prejudice his position.
6. The amended claim was dismissed. Permission to appeal was refused because the issues were fact-sensitive, no question of principle arose, and there was no reasonable prospect of success or other good reason for permission. Costs were limited to the issues raised by the amendment and were not to be enforced against the legally aided claimant.

The judgment describes earlier proceedings before Knowles J, who granted permission on the amended ground concerning deferral of the indefinite-leave application. It also records related proceedings before the First-tier Tribunal and Upper Tribunal concerning Article 1F. This was a first-instance judicial review decision in the Administrative Court.