Taylor and Owusu-Akyeaw, R (on the application of) v Secretary of State for the Home Department

Immigration applications are generally decided under the rules and policy in force when the decision is made, unless a transitional provision provides otherwise. The transitional provision introduced by HC 194 displaced that principle only for decisions made between 9 July and 6 September 2012. HC 565 restored the ordinary position from 6 September 2012, so applications made before 9 July 2012 but decided later could be considered under the New Rules.

A statement that a decision is hoped to be made within a particular period is ordinarily an aspiration, not a promise giving rise to a legitimate expectation. Delay may be unlawful where it is manifestly unreasonable or causes particular detriment which the Secretary of State fails to alleviate. Administrative error and delay alone do not establish conspicuous unfairness.

The claimants sought judicial review of decisions granting them limited leave to remain under the immigration rules introduced on 9 July 2012. Each had applied before that date for leave outside the rules on family-life and human-rights grounds and argued that the more favourable Old Rules should have applied.

The first claimant additionally argued that an assurance of a decision within four to five weeks created a legitimate expectation, and that the delay in deciding her application was so excessive as to be conspicuously unfair and an abuse of power. Permission had initially been granted in reliance on Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402, but the claim was stayed pending the decision in Singh v Secretary of State for the Home Department [2015] EWCA Civ 74. The central issues were which rules applied and whether the delay rendered the first claimant’s decision unlawful.

1. Ground 1 failed. The court was bound by Singh v Secretary of State for the Home Department [2015] EWCA Civ 74. The ordinary Odelola v Secretary of State for the Home Department principle is that immigration rules apply according to the date of decision. HC 194 displaced that principle for applications made before 9 July 2012 and decided before 6 September 2012. HC 565 introduced paragraph A277C without an equivalent transitional provision, restoring the ordinary principle from 6 September 2012.
2. Accordingly, the Secretary of State was entitled to apply Appendix FM and the New Rules to applications made before 9 July 2012 where decisions were taken after 6 September 2012. The two decisions fell outside the limited two-month window identified in Edgehill. The grant of permission to appeal in Thomas v Secretary of State for the Home Department 2015 EWCA Civ 856 did not displace the binding authority of Singh, and the claimants’ ambiguity argument concerning the words “those provisions” in A277C was withdrawn and in any event unfounded.
3. Ground 2 failed. The letter stating that a decision was hoped to be reached within four to five weeks was an aspiration, not a commitment. The surrounding correspondence and provision of further information did not convert it into a promise. There was also no evidence that the claimant had relied on the statement.
4. The Secretary of State owed a public-law duty to decide the application within a reasonable time. The relevant question was whether the delay was manifestly unreasonable in the circumstances. Although there was administrative error, including delay after the Croydon team was disbanded, there was no sufficiently serious or sustained maladministration, particular urgency, or particular detriment requiring alleviation. The delay was therefore not unlawful and did not amount to conspicuous unfairness or abuse of power.
5. Even if the delay had been unlawful, the proper course would have been for the Secretary of State to reconsider the matter and any need for corrective relief. The court would not have directed the grant of leave under the Old Rules. The judicial review claims were dismissed. The claimants were ordered to pay the Secretary of State’s costs, subject to summary assessment.

• Court of Appeal: Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402 initially supported permission for the present claim.
• Court of Appeal: Singh v Secretary of State for the Home Department [2015] EWCA Civ 74 held that HC 565 restored the ordinary rule for decisions made after 6 September 2012. The Supreme Court refused permission to appeal.
• High Court (Administrative Court): The present court applied Singh, rejected both grounds of challenge and dismissed the claims.