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

An immigration decision-maker has an ancillary or incidental power under the Immigration Act 1971 to defer determining a leave application, including while a criminal investigation is pending. The power must be exercised lawfully, rationally and consistently with the purposes of the Act. Its lawfulness is fact-sensitive, and the concept of a reasonable time is flexible. A later application under the Immigration Rules may vary an earlier undecided application and render a challenge to its deferment academic. Where applicants were already overstayers, the consequences of the hostile environment did not, on these facts, establish unlawful Article 8 interference attributable to the delay.

The appellants, a Chinese family, challenged the Secretary of State’s failure to determine their June 2021 applications for leave to remain under the skilled worker route. The first appellant had been arrested during an ongoing money-laundering investigation, but had not been charged. The Secretary of State deferred the applications, initially referring incorrectly to an outstanding prosecution and later to exceptional complexity.

Upper Tribunal Judge Frances refused permission to apply for judicial review on the basis that the Secretary of State had an implied power to defer, and that the delay was not arguably unlawful or irrational. During the appeal, the appellants made an August 2023 application under the family route, which materially varied the earlier application. The central issues were whether the appeal had become academic, whether the deferment was lawful, and whether Article 8 and the child-welfare duty affected the analysis.

1. Disposition and procedure. The appeal was dismissed. The court chose to review the Upper Tribunal’s decision rather than rehear the permission application under CPR rule 52.21(1)(a) and (b). The choice between review and rehearing depends on the circumstances. A rehearing was inappropriate where the later application meant that the exercise would be largely futile, consistent with Audergon v La Baguette Ltd & others [2002] EWCA Civ 10 and Asiansky Television plc & Anor v Bayer-Rosin [2001] EWCA Civ 1792.
2. Academic appeal. The August 2023 application materially varied the June 2021 application under rule 34BB of the Immigration Rules. The applications were now based on different routes, so the earlier challenge had become academic and the clock on that challenge had effectively stopped. Since the point was taken as part of the appeal rather than separately, the court nevertheless addressed the merits.
3. Power to defer. Applying Regina (X and others) v Secretary of State for the Home Department [2021] EWCA Civ 1480, the Secretary of State has an ancillary or incidental power under the Immigration Act 1971 to decide when and how applications are dealt with, including deferral pending a criminal investigation. The power is subject to ordinary public-law review. Information from an investigation may rationally be relevant to conduct, character or associations under rule 245DD(1) and paragraph 322(5) of the Immigration Rules.
4. Lawfulness and delay. The question is whether deferral is lawful on the particular facts. The assessment is fact-sensitive, and what amounts to a reasonable time has elasticity, as explained in R (S) v SSHD [2007] EWCA Civ 546. Given the seriousness of the alleged money laundering, the continuing investigation and the recent submission of the case file for a charging decision, the Upper Tribunal was entitled to find that the deferment was not unlawful, irrational or unreasonable at the relevant time.
5. Article 8 and children. The Article 8 conclusion was vulnerable because the Upper Tribunal had not fully addressed the relevant considerations. However, the appellants were already overstayers, subject to removal notices, and had not challenged the earlier refusal of leave. After considering the statutory framework, the Court of Appeal concluded that the same result followed. The Secretary of State had also complied with section 55 of the Borders, Citizenship and Immigration Act 2009; the child was in parental care and at school, and the evidence did not show a significant welfare impact or reach the seriousness threshold for Article 8(1).

• Court of Appeal (Civil Division) — [2024] EWCA Civ 81: dismissed the appeal, while addressing the merits notwithstanding that the appeal had become academic.
• Upper Tribunal (Immigration and Asylum Chamber) — UT Judge Frances, 22 July 2022, JR/475/2021: refused permission to apply for judicial review, holding that the delay was not arguably unlawful or irrational.