Said & Ors, R (on the application of) v Secretary of State for the Home Department

Where immigration applications remain undecided for an exceptional period because of maladministration, the decision-maker must consider the complete immigration history, the reasons for delay and the applicant’s developed private and family life. A decision must apply the law applicable at the date of decision, subject to any transitional protection, but must not use later statutory restrictions unfairly where the delay caused the application to remain outstanding.

Spent convictions protected by transitional provisions must be excluded from the decision on an outstanding immigration application. Any later deportation consideration must be separate and must take the application decision into account. A restricted statutory appeal is not an adequate alternative remedy where it cannot address material legal errors in the underlying immigration decision.

The claimants were a father and his two adult sons whose linked applications for settlement and indefinite leave to remain had remained undecided for about ten years. Their applications arose from the father’s marriage to a British citizen who had acquired citizenship under section 4B of the British Nationality Act 1981.

The Secretary of State eventually granted the father indefinite leave, granted one son 30 months’ leave outside the Rules, and refused the other son’s application while pursuing his deportation. The claimants amended their judicial review claims to challenge those decisions, seek declarations concerning the delay, and claim damages for breaches of article 8.

1. Delay and remedies. The applications should have been decided by 20 December 2004. The ten-year delay resulted from repeated administrative errors, misclassification of the cases, loss of files and failures to link and progress related applications. The delay was unlawful and substantially interfered with each claimant’s private and family life. Claims for damages and declaratory relief were not academic, and the internal complaints procedure was not a suitable alternative remedy for these complex claims.
2. Settlement applications. The decision-maker had to consider the applications sequentially and separately, beginning with the father’s application and then the sons’ applications. The historic application had to be considered under the Immigration Rules, with appropriate relaxation of qualifying requirements where necessary, before recourse to article 8. The decision-maker also had to consider the entire intervening history and invite updated evidence about family and private life.
3. Spent convictions. Under sections 139–141 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Rehabilitation of Offenders Act 1974, the sons’ spent convictions were protected in relation to their pre-existing, undecided immigration applications. The convictions could not be used to refer or decide those applications. A deportation consideration could occur separately, but only after the settlement application had been decided and with that decision taken into account.
4. Deportation. The older conviction did not attract automatic deportation under the transitional regime. The Secretary of State first had to make a stand-alone decision whether the claimant’s presence was non-conducive to the public good, then serve notice, consider representations and only thereafter decide whether to deport. The decision-maker had to weigh all relevant facts, including mitigation, the age of the conviction, previous decisions not to refer the case, the delay, current risk, and private and family life.
5. Orders. The father’s estate could continue the claim. Declarations were made that his decision should have been made by 20 December 2004 and that the subsequent delay was unlawful. The decisions concerning both sons were set aside. Fresh decisions were ordered in accordance with the judgment. Each claimant succeeded on liability for damages, with causation and quantification adjourned for a further hearing if not agreed.

First-instance judicial review decision. No appellate history was stated in the judgment.