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

An immigration application must be determined within a reasonable time. There is no fixed period. The assessment depends on the circumstances, including complexity, resources, applicable policy, the applicant’s needs and the adequacy of the Secretary of State’s explanation. A prolonged unexplained delay may be unlawful under ordinary public law principles.

Unlawful delay does not automatically create an entitlement to substantive damages. Damages for an Article 8 breach require sufficiently serious consequences. In detention cases, the court determines legality as a primary decision-maker. It must assess the Hardial Singh principles, including the prospect of removal, diligence, absconding risk and the risk and seriousness of reoffending.

The claimant sought judicial review concerning the Secretary of State’s failure to determine his 2005 application for indefinite leave to remain and his 2015 asylum claim. He also challenged his immigration detention from 22 January 2018 following release from a criminal sentence.

He alleged unlawful delay, breaches of published policy and Article 8 of the ECHR, and unlawful detention under common law and Article 5. The central issues were whether the delays were unlawful, whether they supported substantive damages, and whether the detention was lawfully maintained despite errors in detention documentation, family ties and the absence of an emergency travel document.

1. Unlawful delay. The Secretary of State is subject to an obligation to determine immigration and asylum applications within a reasonable time. No fixed time limit applies. Reasonableness depends on the circumstances, including the needs of different categories of applicant, complexity, workload, resources, adherence to policy and communication with the applicant. Delay is unlawful where it results from irrational action or inaction or an abdication of discretion.
2. The unexplained failure to determine the claimant’s indefinite leave application for more than 13 years was excessive and unlawful. The Secretary of State had not adequately explained the periods of inactivity, the effect of the claimant’s criminal proceedings or why the application remained unresolved while deportation was considered.
3. The asylum claim had remained outstanding for about three and a half years. The Secretary of State had not adequately explained the three-year period during which the claimant was imprisoned. Imprisonment might create difficulties or justify a change of priorities, but the court could not assume that it justified placing the claim on hold. The asylum delay was therefore unlawful.
4. Damages. Unlawful or manifestly excessive delay does not itself establish an entitlement to substantive damages. The claimant had not shown sufficiently serious consequences engaging Article 8. His offending was not sufficiently causally connected to the delay, he remained liable to deportation, and there was no evidence of deliberate infringement.
5. Detention. The court considered legality as a primary decision-maker and applied the Hardial Singh principles. The Secretary of State had to justify detention throughout the relevant period. The assessment included the prospect and timing of removal, diligence, the risk of absconding, the risk and seriousness of reoffending, the effect of detention and family circumstances. There is no tariff or maximum period.
6. The claimant’s serious offending, including possession of a loaded firearm and assault in custody, justified significant weight being given to the risks of reoffending and harm to the public. The absence of a current OASYS assessment did not prevent the decision-makers and the court from assessing risk from the available material. The errors in some monthly reports did not make detention unlawful because the correct legal basis had been given at the outset and the detention had been reviewed. The detention challenge therefore failed.
7. The claim succeeded in relation to unlawful delay, but the claims for substantive damages and unlawful detention failed. Relief was to be addressed after submissions on the appropriate order and any subsequent developments.