Secretary of State for the Home Department v Said & Ors

Administrative delay in deciding an immigration settlement application is not actionable merely because it is maladministration. It may engage Article 8 and support more than nominal just satisfaction where the delay is manifestly excessive or causes particular detriment that the Home Office failed to alleviate. A backlog or administrative classification cannot justify transferring a settlement application into an inappropriate legacy process. An internal complaints procedure will not necessarily be an adequate alternative to judicial review, particularly where delay is prolonged, several family members are affected, and causation requires determination. Rolling judicial review remains permissible where later decisions and supplementary claims can be dealt with fairly, especially on a documentary record and without material prejudice. The appeal was dismissed, with causation and compensation left for a further trial.

The Secretary of State appealed from an order of the High Court, Administrative Court, made by His Honour Judge Anthony Thornton QC on 29 April 2015 and sealed on 15 May 2015. The order declared unlawful delays in dealing with three related settlement applications between December 2004 and October or November 2014, and directed a further trial on damages, causation and quantification.

The applications concerned a father and his two sons, whose wife and mother had become a British citizen. By 2014, the father had been granted indefinite leave to remain, one son had been granted limited leave, and the other had been made liable to deportation.

The appeal raised three broad issues: whether the delay was unlawful; whether the claimants should have used the Home Office’s internal complaints procedure; and whether the procedure adopted by the High Court, including amendment, a rolled-up hearing and refusal of an adjournment, was unfair.

Appeal dismissed. McCombe LJ gave the judgment, with Rafferty LJ agreeing.

1. The appeal was confined to the three grounds for which permission had been granted. The Secretary of State had expressly stated that she did not challenge the orders setting aside the 2014 decisions concerning Yusuf and Yakub. She could not later seek to set aside the entire order.
2. The High Court had been entitled to permit amended grounds, consider later decisions and conduct a rolled-up hearing. Rolling judicial review is not inherently impermissible. Its touchstone is fairness. Here, the pleadings identified the issues, the material was substantially documentary, and no material prejudice or need for cross-examination had been demonstrated. The judge’s review of the history went further than necessary, but the individual factual findings were not properly challenged on appeal.
3. The applications were settlement applications based on dependence on a settled British citizen. They were not properly treated as legacy cases merely because the family had an earlier asylum history. The legacy process therefore did not excuse the delay. A delay may engage Article 8 where it is manifestly excessive or causes particular detriment which the Home Office failed to alleviate. The admitted maladministration had crossed that threshold, and a further trial on causation and compensation was justified. No conclusion was reached on the amount of any award.
4. The internal complaints procedure was not an adequate alternative remedy. MD (China), [2011] EWCA Civ 453, concerned materially different circumstances, including short delays, issued status documents, an apology and a complaints procedure suited to the claims. These proceedings concerned more than ten years’ delay affecting three close family members, with significant Article 8 issues and causation requiring trial.
5. The judge should not have supplemented his judgment uninvited after hand-down, as explained in Brewer v Mann, [2012] EWCA Civ 246. That error caused no material injustice and did not affect the outcome.

• Court of Appeal (Civil Division): the appeal against the High Court order was dismissed: [2018] EWCA Civ 627.
• High Court of Justice, Administrative Court: declared unlawful the delay in deciding the three settlement applications from 20 December 2004, set aside the decisions concerning Yusuf and Yakub, and directed a further trial on damages, causation and quantification.
• High Court permission stage: permission to apply for judicial review was granted on 23 July 2013, with the delay claim considered well arguable.