Last Updated on January 2, 2021 by LawEuro
Neutral Citation Number: [2018] EWCA Civ 627
Case No: C4/2015/1688
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
ADMINISTRATIVE COURT
His Honour Judge Anthony Thornton QC
CO/4634/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 27/03/2018
Before:
LADY JUSTICE RAFFERTY
and
LORD JUSTICE McCOMBE
– – – – – – – – – – – – – – – – – – – – –
Between:
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
– and –
YASIN HUSSEIN AHMED SAID
YUSUF YASIN SAID
YAKUB YASIN SAID
Respondents
– – – – – – – – – – – – – – – – – – – – –
– – – – – – – – – – – – – – – – – – – – –
Julie Anderson (instructed by The Government Legal Department) for the Appellant
Parosha Chandran and Priya Solanki (instructed by Wilsons Solicitors LLP) for the Respondents
Hearing date: 16 January 2018
– – – – – – – – – – – – – – – – – – – – –
Judgment Approved
Lord Justice McCombe:
(A) Introduction
1. This is an appeal by the Secretary of State for the Home Department (“SSHD”) from the order of HH Judge Anthony Thornton QC (sitting as a Judge of the High Court) of 29 April 2015 (sealed on 15 May 2015) whereby he declared that delays by the SSHD in dealing with applications by the three respondents (respectively “Yasin”, “Yusuf” and “Yakub”), for settlement in the United Kingdom, in the period between 20 December 2004 and 9 October/13 November 2014 were unlawful. The judge referred to a further trial of all issues of damages, causation and quantification in respect of such delays.
2. Before proceeding further, it will be seen that I have adopted above, and I will adopt in later parts of this judgment, shortened versions of all the respondents’ names and of one other family member, for convenience. No disrespect is thereby intended, as I hope the respondents will accept.
3. Yasin died, on 12 January 2015, in the period between the hearing before the judge on 19 December 2014 and the making of his order on 29 April 2015. As a consequence of the death, the judge made an order, under CPR 19.8(1)(b) for his claim to be continued in the name of his widow, Laila Said (“Laila”).
4. In addition to making the primary orders which I have indicated, the judge made certain procedural orders in the course of the proceedings, as to amendment to the grounds for judicial review, for the hearing of the application for permission to apply for review and the substantive review application on a “rolled up” basis and, in his final judgment, granting permission to apply for judicial review, to which I will return below.
5. The SSHD appeals against the judge’s order, with permission granted by Hallett LJ on 16 March 2016, on three broad grounds of appeal, contained in a document entitled “Interim Grounds of Appeal” (dated 21 May 2015) which has never been subsequently amended. Ground 1 is that the judge erred in law in making his delay declaration. Ground 2 is that the judge should have declined to grant permission to bring a judicial review claim and (a fortiori) to find that the claim succeeded in circumstances in which the claimants had failed to exhaust the SSHD’s internal complaints procedure before bringing the claim. Ground 3 alleges a materially unfair trial process adopted by the judge, relying on a number of “sub-grounds of appeal”, including the refusal of an adjournment of the proceedings on 19 December 2014.
6. On the hearing of the appeal, the SSHD was represented by Ms Julie Anderson (who did not appear below) and the respondents were represented by Ms Parosha Chandran and Ms Priya Solanki.
(B) Outline Background Facts
7. As will have been gathered from what I have said already, the claims in these proceedings arise out of what the respondents contended were the unreasonable delays on the part of the SSHD in dealing with applications for settlement by all three of them. The applications were made on 1 September 2004 and were not decided upon by the SSHD until October/November 2014. On those dates, indefinite leave to remain was granted to Yasin, leave to remain for 30 months was granted to Yakub and it was decided to deport Yusuf.
8. The judge delivered a very lengthy judgment of 105 pages running to 492 paragraphs. In it, he sets out in very great detail the entire history of the dealings by various emanations of the Home Department with the respondents’ applications and with ancillary matters. The judge resolved the claim before him by reference to 17 separate issues. (There is a complaint by the SSHD, to which I will return, arising out of the judge having delivered one version of his draft judgment on 29 April 2015 and a second version on 14 May 2015. For the purposes of the hearing and preparation of this judgment, I have worked principally from the second version, as it was agreed at the hearing that we should).
9. At the outset of the hearing of the appeal, the court enquired of Ms Anderson whether she took issue with the bare factual statement by the judge of the events that occurred, in dealing with the applications, over the 10 year period. Ms Anderson indicated that she did not agree with everything said by the judge in this regard. However, the discrepancies (such as they might have been) were not individually identified, either in the Grounds of Appeal, or in argument nor were we taken through the documentary trail upon which the judge’s summary was based. I will, therefore, take the outline facts for present purposes from the judgment, unless it is clear that an important issue arises. I do not intend to descend to anything like the detail that was deployed by the judge, particularly as the grounds of appeal are advanced on three broad and succinct bases only. I will concentrate on those features of the history, as described by the judge, that seem to me to have a bearing on the appeal issues. Nonetheless, my factual outline cannot be as short as I would have wished.
10. Yasin and Laila were husband and wife. Yusuf and Yakub are their two sons, born respectively on 12 December 1982 and 17 March 1987. Yasin was born on 26 May 1953 in Kenya and became a Kenyan citizen on Kenya’s independence. He had lived in Kenya all his life until he arrived in England on 18 September 1999. Laila was born on 15 March 1956 and had also lived her life in Kenya until she came independently to the United Kingdom with her two sons, a little earlier than her husband, on 24 August 1999. It seems that in this early period there had been an estrangement between Laila and Yasin but that this was later resolved and the couple remained united for the bulk of the relevant period.
11. Laila was born a citizen of the United Kingdom and Colonies by virtue of both her parents having had that status. She was not entitled to Kenyan citizenship upon independence. She became a British Overseas Citizen on the coming into force of the British Nationality Act 1982. By that change of status she lost the right of abode in the United Kingdom and that remained the position until the passage into law of s.4B of the 1982 Act on 30 April 2003. After that section came into force, she became a British Citizen on 13 October 2003 in circumstances to which I return.
12. The judge set out in paragraphs 24 to 27 of his judgment the family’s situation in Kenya and the background to their decision to leave for this country in 1999. Laila had siblings based here and she and her sons arrived here initially on 6-month visitors’ visas. On 6 October 1999, having taken advice and without previously having contemplated doing so, Laila applied for asylum for herself and her sons, based upon racial discrimination, persecution and harassment experienced by them all in Kenya. Given the continuing validity of their initial visas, the applications led to the extension of their leave to remain, until the applications and any appeals had been dealt with. Yasin made his own asylum claim on 3 December 1999.
13. The judge explained how (at the material times) the Home Office’s files were organised. It seems that each of the parents had a “principal” file. The two sons’ files became “sub-files” of Laila’s principal file. This, however, does not seem to have led to an entirely orderly dealing with their immigration affairs and much of the subsequent difficulty appears to have arisen from a lack of “joined up” thinking within the Home Office as the matters were handled, at different times, within disjointed “silos” in the department.
14. Both parents’ asylum claims were refused and appeals in each case were unsuccessful: Laila’s appeal was dismissed on 19 September 2001 and that of Yasin on 22 October 2002. At that stage, presumably, their leave to remain here would have lapsed.
15. In paragraphs 34 and following of the judgment, the judge deals with the unsuccessful appeals and outlines the family’s circumstances in this period. Yasin was working as mechanic in Reading and Laila worked as an auxiliary nurse. The judge records that Yusuf had a problematic time at school and that on 6 June 2001 and on 18 December 2001 he was convicted of driving without a licence and while uninsured and, on the latter occasion he was convicted of similar offences and of driving with excess alcohol. He entered into a close relationship with a young woman and they had a child born on 27 April 2003.
16. Further applications for leave to remain in the UK were submitted by Laila (for herself and her sons) and by Yasin, on 22 January 2002 and 3 December 2002 respectively. Owing to difficulties in getting employment, Yasin opened his own car repair business as a sole trader.
17. On 2 March 2003, Yusuf became involved in violent incident at a petrol station in Reading and was charged with grievous bodily harm “GBH”, affray and two counts of common assault. In later documents it is said that the GBH was one of wounding with intent to cause grievous bodily harm (section 18 of the Offences against the Person Act 1861). In due course, so it is said, Yusuf pleaded guilty to these offences and on 20 August 2004 he was sentenced to 18 months imprisonment. No recommendation for deportation was made and no hint of an intention to deport Yusuf (or any consideration of such a step) was communicated to him at any stage prior to September 2014, ten years after the sentence had been passed and well after these proceedings had been begun.
18. Very little is known about the circumstances of the convictions and of the criminal proceedings. The relatively light sentence passed on Yusuf for such offences gave the judge cause for anxious thought. There are no papers relating to it and decisions seem to have been taken by the appellant in Yusuf’s case throughout without the benefit of the Crown Court judge’s sentencing remarks, pre-sentence reports or prosecution statements. Judge Thornton considered the length of the sentence passed, in the light of the then prevailing sentencing guidelines, and expressed the view that the sentencing judge must have decided that there were significant mitigating features present and that leniency was appropriate.
19. It seems that during consideration of Laila’s 2002 application between December 2002 and March 2003, it became apparent to the Home Office that she was soon to become entitled to the benefit of the amendment to the British Nationality Act 1982 and could then apply for British citizenship. She was so advised. She duly made the application on 13 May 2003 and in the process was treated as having applied for indefinite leave to remain on behalf of her two sons as dependents. She applied on behalf of Yakub as a minor (he was 17) and for Yusuf as a dependent, although he was by then 20. The judge records (at paragraph 54) a number of further applications by the two sons for further consideration of their claims in November 2003. It seems that much of the documentation relating to this period had been lost by the time of later decision making: see paragraph 57 of the judgment.
20. The certificate of registration of Laila’s British citizenship was given to her on 13 October 2003. The judge noted also that in May 2004 a caseworker was making security checks in respect of Yakub, being minded to grant him indefinite leave to remain. At paragraph 57, however, the judge records that the dependency claims of the two sons were not finally dealt with at that stage. The judge found that the sons’ claims were not properly dealt with, as he thought they should have been as an immediate consequence of the grant of citizenship to Laila. Nor was Yasin’s claim to remain as a spouse of a settled British citizen considered at that stage either.
21. The judge considered that there was delay between May 2003 (when Laila applied for citizenship) and June 2004 in dealing with the family’s various applications (paragraph 63 and 64 of the judgment) although the judge recognised that, during some of this time, Yusuf would have been in on remand pending trial/sentence in respect of the offences of March 2003.
22. The position in June 2004 was recorded by the judge as follows in paragraph 65 of his judgment:
“65. By June 2004, Laila, Yasin, Yusuf and Yakub had been resident in the UK for 4 years 10 months. Yusuf was 21 and Yakub was 17 and both were living at home and were entirely dependent on their parents. Both had entered the UK with Laila when aged 17 and 12 respectively on 24 August 1999 as her dependent sons and both were named on her application for asylum as her dependants. This application became appeal rights exhausted on 19 September 2001 and both were named as Laila’s dependants in her fresh claim for ILR outside the IRs dated 22 January 2002 and in her application for British citizenship dated 13 March 2003. When Laila was registered as a British citizen on 13 October 2003, Yusuf and Yakub’s applications for ILR as her dependants remained undecided and were never subsequently decided or withdrawn. Yasin meanwhile had applied for asylum which was refused by both the SSHD and an adjudicator on appeal and his subsequent fresh claim for LTR outside the IRs remained undecided and it was never subsequently decided or withdrawnhttp://www.bailii.org/ew/cases/EWHC/Admin/2015/879.html – note17. Yasin, Yusuf and Yakub were completely in the dark as to the progress of their applications for LTR and ILR because the SSHD had not considered it necessary to provide the applicants with any information about the progress of any of them.”
23. On 2 June 2004, Yasin made application for ILR as a spouse of a British citizen settled in the UK and named the sons as dependents of both of them. This application was made on a SET(O) (i.e. “Settlement – Other”) form. Yasin lodged a SET(M) (“Settlement – Married”) form on 12 August 2004. Yusuf lodged a SET(O) form on 20 August 2004. The applications were accepted as valid by the Home Office and it was recorded that a fee had been paid. Being linked applications they were placed on the parents’ principal files and the sons’ sub-files, to which I have already referred.
24. It seems that the settlement applications were acknowledged on 9 September 2004 by “Unit ICS12 within the Managed Migration section of the IND”. The letters said this:
“We should deal with postal applications within 13 weeks at the most from when we receive them in IND. We aim to complete 70% of postal applications within 3 weeks of receiving them in IND.
Please note that requests to speed up consideration will only be considered in exceptional circumstances and where there is documentary evidence of a need to travel in an emergency.”
The judge found that this statement meant what they said and he rejected a possible interpretation of them, later advanced in a witness statement made on behalf of the SSHD well after the event in 2014, that they only meant that the department would look at the applications within the target period but would not necessarily make a decision on them.
25. It seems that, after the “target date” for determination (20 December 2004) was noted on the file or files, the applications were then passed to another section of the department, “LSCU6”, for determination. The judge said that this department was concerned with enforcement cases involving illegal entrants or those who had overstayed after expiry of leave to remain. As the judge noted, while the three applicants were indeed “overstayers”, they were now making settlement applications as spouse/dependants of someone (Laila) who had recently obtained citizenship under the amendment to the 1982 Act and who already had unresolved applications extant from January 2002 and March 2003. The linked applications, the judge found, were not dealt with because of increased enforcement workload but this was not explained to the respondents.
26. The judge concluded that,
“There is no evidence to displace the assumption that the failure to take decisions in these two applications by 20 December 2004 occurred because of the inefficient way that the SSHD was processing applications being considered by the MM section. It was also caused by the SSHD’s failures to reach decisions in all three of the Saids’ cases in 2003 and in not referring their 2002 applications to the same Directorate as was dealing with Laila’s citizenship application and then linking all their applications together to be decided by that Directorate.”
(Paragraph 83 of the judgment)
27. In paragraphs 84 to 115 of the judgment, the judge considered a period between February 2005 and January 2007 when, following specific invitation by the Home Office, Laila and Yasin submitted applications in respect of Yasin and the two sons under an initiative that came to be known as “the family exercise”. The exercise, in its simplest terms, was to cover cases in which there had been applications for asylum lodged prior to 2 October 2000 which included at least one dependant aged under 18 in the UK on that date, or on 24 October 2003, who was still regarded as part of the family unit. These cases would be considered for the grant of ILE/ILR or settlement in the UK. The process does not seem to have been designed for past asylum seekers whose circumstances had changed by one of the family having become a British citizen.
28. Three applications under this “exercise” were submitted by the Saids. The first application (made on 10 March 2005 by Laila) clearly disclosed Yusuf’s convictions. It was rejected on 21 March 2005 on the grounds that Laila was a British citizen. This was followed by a similar application by solicitors for Yasin on 5 April 2005, with reference to Laila’s failed application.
29. The history of this second application the judge relates in paragraphs 96 to 107. Essentially, the application was rejected on 30 June 2006 because of Yusuf’s convictions, a fact already well known to the relevant section of the department from Laila’s own application of March 2005. The judge further noted that the refusal letter referred to all three applicants under the same reference and he expressed the view that the applications of Yasin and Yakub could not and should not reasonably have been rejected in the same breath (my words not the judge’s) as Yusuf’s because of the latter’s convictions. The judge could find no reason why Yasin and Yakub should not have been granted ILR and the right to settle here at that stage. I would note that at that stage there was no hint that Yusuf should be deported or even that his case should be referred for consideration of such a step. As already mentioned, Yusuf had been sentenced for the criminal offences to 18 months imprisonment. He was released on licence on 7 March 2005.
30. It seems that there was an internal review of the decision of 30 June 2006 to exclude the entire family from any benefit of the “family exercise”. This was initiated on 13 August 2006. The review was never completed but, unaware of this process, on 18 August 2006, Yusuf through solicitors sought a reconsideration of the decision with detailed representations, including details of his convictions and his prison sentence. In this regard, the judge noted the following:
“108. … The letter contained this passage within it:
“10. Our client also believes that my life would be at risk in Kenya if he were to return to Kenya on account of my ethnic background. I would never be accepted as a Kenyan and would always be regarded as an Asian. I, therefore, would be prone to racist attacks by the local Black Kenyans.”
109. This passage is an obvious paraphrase of written instructions provided by Yusuf that were not converted into the third person in the letter-drafting. Many years later, in September 2014, the SSHD contended that these words gave rise to a fresh claim for asylum by Yusuf and purported to arrange a screening interview for him having served him with notification of a requirement to attend an asylum screening interview. This notice was subsequently withdrawn after Yusuf’s solicitors denied that he had ever made a fresh asylum claim. It is clear from an objective reading of the passage relied on by the SSHD that Yusuf was not making a fresh asylum claim and that the SSHD’s contention that Yusuf had made one was wholly untenable.”
31. On 22 August 2006, through the same solicitors, Yasin asked for reconsideration of the decision of 30 June 2006 in his own case. A chasing letter was sent on 28 November 2006. This demarche led to a response from yet another section of the Home Office “Block C of the IND Workflow team” saying that his application had been referred to the “legacy exercise”. The judge said,
“114. … That decision brought the unfinished consideration of the family exercise application by the relevant family exercise team to an end and led to all three of Yasin’s outstanding applications being transferred undecided to the legacy exercise.”
32. I will not enter into the details of the problems recounted in paragraphs 120 to 123 of the judge’s judgment, including further background checks on the three applicants, which revealed to yet further officials the fact (already well-known to other officials) of Yusuf’s convictions. The judge recorded that the resultant, not surprising discovery of the convictions led to all the cases being transferred to the “refusal hold”, without there being any record of any decision being communicated to any of the respondents. It is also noted that in this period the files for Yusuf and Yakub, and probably that of Yasin also, had been lost. Why Yasin and Yakub’s cases had to be prejudiced by Yusuf’s convictions was not explained.
33. The judge analysed the causes of delay in the period from February 2005 to February 2007 in paragraphs 124-6 of his judgment and introduced his consideration of the subsequent period (February 2007 to September 2013 – “legacy process”) with the following assessment of the decision to refer the cases to the legacy process:
“127. The decision to transfer consideration of Yasin, Yusuf and Yakub’s cases to the legacy process was erroneous because neither their 1 September 2004 applications nor any previous application after their initial claims for asylum were legacy cases. This was because, although Laila on behalf of Yusuf and Yakub and Yasin on his own behalf had initially made asylum applications which had failed, their positions had changed dramatically once Laila acquired British citizenship. After that had occurred, their subsequent applications for ILR were exclusively based on their dependency on her status as a settled British citizen who was present in the UK. They were, therefore, no longer to be regarded as failed or unresolved asylum seekers but as dependants of a settled British citizen. The transfer decision was disastrous for them since it led to a further delay of seven years whilst their cases languished in the legacy process until they were transferred again, this time to the Older Live Cases Unit (“OLCU”), on 11 September 2013.”
34. The judge recorded that in this period Laila (then aged 50), who had been in the nursing profession for some time, in spite of the many difficulties experienced by her, successfully completed her nursing degree and became fully qualified as a nurse in March 2006.
35. I will not dwell lengthily upon the complex series of events recounted in paragraphs 127 of the judgment, dealing with the period in which the respondents’ cases were supposedly under the aegis of the Home Office’s legacy exercise. A summary as at April 2010 can be taken from an undated letter from the head of SSHD’s “Ministerial Correspondence North T[e]am” to Laila’s MP and the judge’s analysis of it, appearing in paragraphs 142-3 of the judgment. The letter to the MP referred to the grant of citizenship to Laila and that the three respondents had applied for leave to remain as dependents in 2004. It continued as follows:
“I apologise for the delay that has occurred in processing their case which has been due to competing operational priorities.
I am afraid that I cannot give you an exact date when their case will be resolved. We have established a dedicated resource to deal specifically with the older, unresolved asylum cases such as Mr Said and his family.
We are aiming to resolve these cases by summer 2011 and are on track to do so. As recently reported to the Home Affairs Select Committee the number of cases being concluded is increasing, with more than 250,000 cases concluded to the end of December 2009.
As we have previously stated, we will prioritise those individuals who may pose a risk to the public and then focus on those whose circumstances are considered exceptional. All cases will be dealt with on their individual merits and in accordance with these priorities.
I would be grateful if you could assure your constituent that every effort is being made to deal with all cases as efficiently as possible and that they will be contacted as soon as a decision has been made on their cases.”
The judge considered that the letter revealed a serious misunderstanding of the cases on the part of the respondent’s officials in the following respects:
“The SSHD’s erroneous views about the applications that were identified by what was stated in the letter were that:
(i) Yasin, Yakub and Yusuf’s cases were “unresolved asylum cases” which were enforcement cases being cases where the SSHD could require the applicant to leave the UK. However, they were not enforcement cases but unresolved settlement applications by the spouse of a British citizen and the two sons of that marriage who had already been resident in the UK for over 10 years.
(ii) Their cases were being considered by the legacy team (i.e. “the dedicated resource [established to] deal specifically with older, unresolved asylum cases”) because they were those of applicants whose asylum applications had been concluded but who had not left the UK. However, their cases were not of that type. They were not of that type but were settlement applications which should have been retained by the IND Directorate that was dealing with British nationality and citizenship and which had granted Laila British citizenship.
(iii) The SSHD did not consider that Yusuf remained a continuing risk to the public or should be deported because the nature of his convictions meant that his continuing presence in the UK was not conducive to the public good.”
36. It is necessary at this stage to refer to offences committed by Yakub. In May and July 2007, he was convicted of two offences of possession of drugs for which he was fined. On 11 May 2010 he was convicted again of possession of drugs and of criminal damage (to his domestic partner’s property). He was sentenced to a community order. The partner later retracted the allegation. However, the incident gave rise to a contact by the police with the Border Agency and an Immigration Officer noted the following (apparently after contact with “legacy” officials):
“Contacted legacy in relation to the outstanding barrier [to his removal], [Yakub] is a dependant on further claim and his father has been here since 1999, due to this they would likely fall for a grant. However, as [Yakub] is no longer detained, the case is not a priority and cannot be dealt with, the likely outcome would be a grant subject to PNC.”
37. Yakub was further convicted of possession of drugs in January 2011 and was sentenced again to a community order. In the meantime, however, his partner had given birth to two children, born on 7 January 2009 and 5 February 2011.
38. In August 2010, Yusuf was arrested on suspicion of a further serious assault, in respect of which he was released without charge. The incident led to this entry on Yusuf’s file:
“Checks revealed two traces/record for [Yusuf] on CID. It appears [Yusuf] is an overstayer, but it appears [Yusuf] currently has an outstanding application possibly since 2004 (cases linked to what appears to be father and brother.) Also details of a British national also linked to records … most recent notes by legacy team indicate MP involvement in 2008 regarding application. There is a suggesting [sic] from these notes that [Yusuf] may be eventually granted [ILR]. In addition, letter sent to solicitors in July 09 (from father’s record) indicates application is still under consideration.”
39. In June 2011, it appears that a further unit emerged within the Home Office as dealing with the respondents’ cases. This was called the “Case Assurance and Audit Unit” (“CAAU”). On 9 August 2011, solicitors for all three respondents chased this unit for some action. This elicited a response on 26 August, in respect of Yasin, that “subject to final security checks” the decision had been made to grant him leave to remain.
40. More security and background checks were made and, following a solicitors’ enquiry, a further note was made in Home Office records on 2 February 2012 as follows:
“In line with current LTR guidance, case falls for a grant of leave. … The individual does not qualify for asylum, Humanitarian Protection or Article 3/8 Discretionary Leave. … Delay has contributed to a period of residence over 4 years. There is no evidence of non-compliance … [Yasin] claimed asylum in 1999 and has now been resident in the UK for 12 years and 1 month. It is therefore accepted that he will have adapted to life in the UK. Reporting has never been set up and from the information on CID it appears that removal has not been pursued. There is a limited prospect of enforcing the individual’s removal.
Decision: In the light of the individual’s length of residence and connections to the UK, it is not appropriate to pursue removal and it has been decided to grant 3 years Discretionary Leave. Please note: applicant’s son has not been considered in line. He was not a dependant on his original asylum application and he is now an adult.”
Passport photographs were asked for a third time in April 2012. On 27 July 2012, the solicitors wrote a pre-action protocol letter and threatened judicial review proceedings. This elicited the response that Yasin’s application, and that of his dependents, of 1 September 2004 would be concluded “in due course” and a note was made on the file:
“PAP rep requests consideration in accordance with legacy. Please see [GCID entry] 2/2/2012, documents have been printed but it does not appear that the grant of DL has yet been implemented. … However, there is also the case of the application from 2004 which is a charge application, and as such takes precedence over the legacy application.”
41. The judge translated this note as follows in paragraph 162 of the judgment as follows:
“Cutting through the jargon, the caseworker writing the note was stating that since Yasin’s application was based on his being the spouse of a citizen who had settled in the UK, it could not be determined in the CRD or its successor the CAAU since these parts of the UKBA were only concerned with legacy cases which were concerned with longstanding asylum applicants and their repatriation if they were not granted LTR. Yasin’s application, on the other hand, was for settlement as the dependent spouse of a settled British citizen which had to be determined the part of the UKBA concerned with settlement, citizenship and nationality.”
42. Laila’s MP again wrote enquiring about the matter and was given a holding reply to the effect that Yasin’s application as a dependent spouse was with the relevant case working unit and that he would be contacted as soon as possible regarding his application. Two further PAP letters were sent on 10 October and 10 December 2012. Nothing was heard. In the absence of response, these proceedings were issued on 18 April 2013.
(C) Events following the issue of proceedings
43. The claim was made by all three respondents for judicial review of the SSHD’s failure to provide decisions on the two settlement ILR applications of 1 September 2004. A cursory acknowledgment of service stated that, “The Claimant [sic: singular]…challenges the [SSHD’s] delay in considering his [singular] outstanding application” and continued by stating that, having reviewed the facts of the “Claimant’s” [singular] case, the SSHD had agreed to carry out a consideration of the application and, “absent of special circumstances”, would take a decision within 6 months of 29 May 2013 (i.e. by 29 October 2013). It also requested, clearly (somewhat ambitiously) that the court should dismiss the application for judicial review.
44. On 23 July 2013, the application (on the papers) for permission to apply for judicial review came before Miss Elizabeth Laing QC (as she then was) (sitting as a Deputy High Court Judge). She granted permission and made the following observations:
“Permission is hereby granted
Observations:
1. The Claimants challenge the Defendant’s delay in making a decision on their application for leave to remain as dependants of a British National. I note that as long ago as 26 August 2011, the Defendant wrote to the principal Claimant to say that “subject to final security checks our decision is to grant you leave in line with current Immigration Rules”.
2. He and his sons have now been without status for 13 years, although his wife acquired British Citizenship in 2003; their application has been outstanding since 2004.
3. Letters threatening judicial review were written on 27 July 2012 and on 10 October 2012. The claim was lodged on 18 April 2013.
4. In her Acknowledgement of Service, the Defendant, “agreed to carry out a consideration of the Claimant’s outstanding application within 6 months of” 30 May 2013. The Defendant did not offer to pay the Claimants’ costs.
5. I consider that it is well arguable that the delay in this case is unlawful, and that it is also arguable that the limited offer made by the Defendant does not make this claim academic.”
45. In September 2013 “Litigation Operations” (“LO”) within UKBA gave instructions for the applications to be transferred from CAAU to yet another group, the Older Live Cases Unit (OLCU), for decision as soon as possible. The judge (no doubt correctly) inferred that the reason for that instruction was that it was at last appreciated the applications did not fall within the so-called legacy process, but were in reality settlement cases.
46. In paragraphs 176 to 181, the judge records what little activity took place with regard to the outstanding applications, while all the time the present proceedings were pending. The six month period in which a decision was to be made, as promised in the Acknowledgment of Service, passed without more, and a further such assurance of decision within 6 months, i.e. by 12 June 2014, was promised to Laila’s MP by a letter of 12 December 2013. That deadline was not met either, although apparently the Treasury Solicitor requested an update on progress on 9 January 2014. The response to this is recorded by the judge in these terms:
“186. … The LO chased this request up with the CAAU who contacted the OLCU with a request to casework the applications as soon as possible. The OLCU responded with an assurance that they would be caseworked within a 3-month target (i.e. by 9 April 2014). In a subsequent discussion between the CAAU and OLCU 14 to whom the applications had been referred, it was agreed that the decisions would be provided by 6 August 2014. The CAAU posting revealed some misunderstanding of what had been transferred for decision in that it requested the OLCU to consider “the applicant’s (sic) outstanding charged application for LTR as a spouse and his asylum claim”. In fact, what had been transferred was neither a LTR application nor an asylum claim but his outstanding settlement application for ILR as the spouse of a settled British citizen and there had also been transferred both Yakub’s and Yusuf’s outstanding settlement applications for ILR as the dependants of that settled British citizens.”
47. Nothing then happened until 7 May 2014 when OLCU asked for a still further PNC check on Yasin and, yet again asked for his (i.e. Yasin’s) photograph – by then for a fifth time. A letter from the respondents’ solicitors on 16 May 2014 pointed out that all three respondents’ cases were supposed to be under consideration by OLCU. This prompted a request by the caseworker for a PNC entry for Yusuf, whose record, of course, had been well known to the Home Office for many years. Yusuf’s 2004 convictions were revealed yet again and the case worker referred to a senior colleague. It seems that this official directed the reference of the case to (yet another group) the “Criminal Casework Directorate” (“CCD”) to which it had never been referred previously in the long history of the matter to that date. This seems to have caused a further stoppage on any work within OLCU, not only in relation to Yusuf, but also in relation to the cases of Yasin and Yakub.
48. It seems that CCD accepted the reference of Yusuf’s case on 25 June 2014. Nothing more was done by OLCU until a message from LO on 30 September 2014, quoted by the judge in paragraph 188 of the judgment. The note was this:
“The above applicants lodged a JR against the 10-year delay in considering their outstanding application. Permission was granted on 29 May 2013 [sic] and following this we have failed to meet 2 deadlines for concluding this case. The substantive hearing has been brought forward to 16/10/2014. …
Diane [of OCLU] is aware of this case and has taken steps to make this decision ready. I have already requested the file to speed things up but it please be ensured that this case is decision-ready within the next week?
We have already been criticised by the judge for delay. …
[Signed on behalf of LO].”
It is worth quoting from the judgment the judge’s summary of what happened then:
“189. This cry to arms was responded to with great alacrity. Initially, OLCU 14 arranged for the referred file relating to these applications to be obtained from hold 5 where it had been stored since its arrival in September 2013 from the legacy unit previously dealing with it. This was file S1028806/008 which was the only file that had been referred to the OLCU. On Thursday 2 October 2014, Mr David Wiggins, who was an EO in Migration Casework, Complex Case Directorate, was allocated the task of deciding and drafting the decisions for both applicants in Yasin’s application for OLCU 14 by the following Tuesday 7 October 2014 (i.e. within the week asked for by the LO’s email of 30 September 2014). He ascertained from the CCD that it had decided the previous week that Yusuf should be deported. He then rapidly considered the available papers in file S1028806/008 and reached the provisional conclusion that there was ample evidence for both Yasin and Yakub to be granted what he described as “residual ILR … given the errors … and substantial and demonstrable mishandling of the case by the SSHD … which have occurred … over a 10-year period.”
49. On 30 August 2014, while Yusuf’s file was still awaiting transfer from Croydon to the CCD team in Liverpool, it seems that he (along with several others) had been arrested on suspicion of affray after a scuffle had broken out between a number of young men in Peterborough, although in the result it was accepted that Yusuf had not been involved. While in custody on suspicion of an offence, the police notified UKBA that Yusuf was in custody but was shortly to be released. As a result an Immigration Officer interviewed Yusuf while he was still in custody and, although he was released he was made subject to restrictions as to residence, employment and reporting: see paragraph 202 of the judgment. No such restrictions had ever been imposed upon him previously.
50. On 16 September 2014 CCD in Liverpool prepared a memorandum for a Senior Caseworker, noting the 2004 convictions and the fact that they were spent, but that he had an outstanding application for LTR, extant since 2004. After stating the nature of the offences, it was said that “Circumstances of offence [were] not known”. On 23 September 2014, with these brief details, the Chief Caseworker decided to pursue deportation. The note made by him was:
“Although 10 years ago, the main offence was of violence.
In addition, there have been several driving offences and driving with excess alcohol could result in serious death or injury to an innocent party.
We should seek to deport.”
51. On 25 September 2014, Yusuf was served by CCD with a notice of liability to deportation. He was invited to respond to a questionnaire relevant to consideration of whether he should be deported or not. An asylum screening interview was also arranged on the basis that he had an outstanding asylum application. This arose from the CCD’s reading of the solicitors’ letter of 18 August 2006 referred to at paragraph 30 above. Yusuf’s solicitors responded that he had never made any such fresh asylum claim.
52. Mr Wiggins considered Yakub’s convictions and, to cut a longer story short, a decision was made on 9 October 2014 that Yasin would be granted ILR outside the Immigration Rules and Yakub would be given leave to remain for 30 months outside the rules, having regard to his convictions. However, the formal decisions to this effect had not been served upon the relevant respondents before the hearing of the judicial review claims fixed for 16 October 2014, when the matter first came before Judge Thornton. However, the fact of the decision in Yasin and Yakub’s cases were communicated to them directly between 10 and 15 October. On 16 October, the SSHD was represented not by Ms Anderson but by Mr William Hansen of counsel. Miss Solanki represented the respondents.
53. We were told by counsel, on the hearing of the appeal before us, that at the hearing on 16 October 2014 the respondents’ legal team were given the formal grants of leave to remain for Yasin and Yakub by the SSHD’s representatives. A memorandum underlying those decisions (dated 9 October 2014, signed by Mr Wiggins) was also disclosed.
54. It seems that, when appraised of these facts, not surprisingly to my mind, the judge asked whether it was intended to pursue any claim for damages on behalf of the respondents. Miss Solanki replied in the affirmative. After a decision by the judge that such a claim should be considered in the context of these proceedings directions for the conduct of the proceedings were agreed between counsel. An initial form of order was presented for sealing and was duly sealed on 22 October 2014, but it was revoked as a result of a misunderstanding (we have seen the e-mails) and it was replaced by a further agreed order dated 27 October 2014 and sealed the following day.
55. The directions were as follows:
“1. The Second Claimant is to provide a response to the Notice of Liability to Deportation Questionnaire dated 25 September 2014 by 23 October 2014.
2. The Defendant is to provide decisions in relation to all three Claimants by 13 November 2014, together with any reasons for their decisions.
3. Both parties are to provide disclosure of all relevant documentation by 20 November 2014. This is to include copies of all files relating to the Claimants. Email addresses, telephone numbers and fax numbers can be redacted as can any material that is covered by legal professional privilege but otherwise these documents are not be served in a redacted form.
4. The Claimants are to file and serve Amended Grounds of Review, together with any Witness Statements relied upon by 27 November 2014.
5. The Defendant is to file and serve Detailed Grounds of Defence, together with any Witness Statements and further Documents relied upon by 11 December 2014.
6. The Claimants are to file at Court and serve upon the Defendant’s Counsel a Consolidated Bundle of Documents and Agreed Authorities Bundle by 13 December 2014.
7. The Claimants are to file and serve their Skeleton Argument by 4.00pm on 16 December 2014.
8. The Defendant is to file and serve her Skeleton Argument by 4.00pm on 18 December 2014.
9. The Hearing is to be listed on 19 December 2014, before HHJ Thornton QC, as the matter is being reserved to HHJ Thornton QC and is part-heard.
10. The hearing is to be listed for One Day.
11. Costs Reserved.”
I set out the directions in full in view of the complaint now made on behalf of the SSHD that the later procedure adopted was unfair. We were told by counsel for the respondents that no suggestion was made at 16 October hearing that there was anything wrong in principle with the case proceeding according to these directions, at least until the nature of the damages claim had been pleaded.
56. Yusuf duly returned the deportation questionnaire on 23 October 2014. However, by a decision dated 13 November 2014 (sent to him under cover of a letter of the same date), the SSHD decided to deport Yusuf. Yusuf launched an appeal against the decision within the prescribed time.
57. The deportation decision, which was arrived at over 10 years after the convictions and after the periods of inactivity within the Home Office, makes “interesting” reading: pp. 589-599 of the Appeal Bundle. It includes an opinion that Yusuf was not socially and culturally integrated in the UK, “…as clearly demonstrated by your lack of a legitimate immigration status in the UK and your serious criminality…”. It acknowledges extended family ties, but only to adults and that no evidence had been provided of “relationships …above and beyond normal emotional ties…”. It was not accepted that there would be very significant obstacles to re-integrating in Kenya since, it was said, Yusuf had spent the majority of his youth until he was 16 in Kenya and could speak English, one of the main languages of Kenya. In rejecting the notion that there were “very compelling circumstances” such that he should not be deported, the writer stated:
“83. As detailed above you were convicted on 20 August 2004 of Affray, Wounding with Intent to do Grievous Bodily Harm and two counts of Common Assault and sentenced to a period of imprisonment of 18 months. As such, your conviction is now ‘spent’, however, following the enactment of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO), the Home Office has an exemption from the rehabilitation periods attached to offences when examining immigration cases. Even though you [sic] conviction was 10 years ago, it was for a violent offence and in addition to this you have been convicted of several driving offences, including driving in excess of alcohol. As such, it is considered that the circumstances of your offence is enough to warrant your deportation from the UK.
84. It is noted that there has been a delay in dealing with your deportation decision. However, as previously stated it is considered that your deportation from the UK is conducive to the public good, when reflected against your criminality in the UK.
85. It is noted that you have previously stated that you have undertaken work whilst in the UK for which you received payment. You have not been granted permission to work in the UK and, therefore, by undertaking employment you have shown a disregard for the immigration laws of the UK.
86. It is noted that you have stated that your father suffers from mouth cancer and is heavily dependant on his wife, your mother. Whilst it is accepted that you have provided evidence of your father’s prognosis, it is not considered that your removal from the UK would be detrimental to his health. Your father has been granted Indefinite Leave to Remain in the UK and could avail himself upon the NHS; he would not be required to leave the UK in the event of your deportation.”
58. I will not hesitate in saying that the reference quoted above to “delay in dealing with your deportation decision” is, to my mind, entirely disingenuous. There had never been demonstrated prior to September 2014 any intention to deport Yusuf. The history, which I have outlined, shows that he was given a light sentence in 2004 and no recommendation for deportation was made at that time. No documents of any substance relating to the offence or the criminal proceedings were retained on Home Office files and there is not the slightest evidence to show that anyone in the Home Office sought to find out more about the offences or any continuing danger to the public presented by Yusuf. There was not the slightest sign of any intention to deport Yusuf, or even to consider such a step, until well after the present proceedings were brought. Of course, Yusuf had never offended again after these offences were committed in 2003. As his sentence was completed before 1 August 2008, he was not subject to the automatic requirement of being made subject to a deportation order under the UK Borders Act 2007 s.32.
(D) The Hearing on 19 December 2014 and the “lead-up” to it
59. The Amended Grounds of Review are dated 2 December 2014 (5 days late under the order for directions). The Detailed Grounds of Resistance are dated 15 December 2014. There had been no grounds of resistance previously, the defence being contained entirely in the very brief statements in the Acknowledgment of Service, notwithstanding the grant of permission to apply for judicial review granted by the Deputy Judge in July 2013 and the direction given in her order for the service of detailed grounds within 35 days.
60. Witness statements from each of the respondents and from Laila, each dated 25 November 2014, were served. The judge recorded at paragraph 301 of his judgment that the SSHD “withheld discovery relating to the nature, extent and causes of delay, all of which have been in issue since the original claim was first advanced, until a few days before the substantive hearing of this case”. Under the judge’s directions order, disclosure was to precede service of the Amended Grounds of Claim. In the Amended Claim document it is said (at paragraph 66) that disclosure was given by both parties on 21 November 2014 (a day later than provided in the directions order). The amended claim document was, as the judge recorded (at paragraph 287), served as soon as possible after the disclosure had been provided.
61. The Amended Claim set out three grounds of claim: 1) unlawful delay; 2) the limited nature of Yakub’s leave to remain; and 3) the alleged unlawfulness of the decision to deport Yusuf. It sought the following relief:
“ORDERS SOUGHT
147. The claimants seek the following orders from the court:
i. Declarations that the delay in Decision-making in their cases was unlawful;
ii. Disclosure within 7 days of today’s date, namely by 9 December 2014, of the Immigration Rules in force on 1 September 2004 and 20 December 2004; [bold type as in the original]
iii. A Mandatory Order, requiring the Defendant to grant the Third Claimant Indefinite Leave to Remain;
iv. A Quashing Order in respect of the Decision to Deport the Second Claimant and refuse him Leave to Remain;
v. An Order requiring the Defendant to reach a lawful decision in Second Claimant’s Case;
vi. Damages under the Human Rights Act;
vii. Costs.”
62. Between the date of service of the Amended Grounds of Review and service of the Grounds of Resistance, the Treasury Solicitor wrote to the respondents’ solicitors on 9 December 2014 suggesting (for the first time) that the proceedings should be stayed pending a reference to the Home Office’s internal (“UKVI”) complaints procedure and enclosing a draft consent order to that end. Reference was made (inter alia) to the case of MD (China) [2011] EWCA Civ 453, to which I will return.
63. That overture was rejected by the respondents’ solicitors and thereafter the Amended Grounds of Resistance were served. In that document, the SSHD made the (by then) inevitable concessions that she “…acknowledges that she has failed to take the material decisions in a timely fashion. She accepts that there has been maladministration”.
64. Although, following the suggestion in the letter of 9 December, the respondents initially made a formal complaint under the suggested procedure this was withdrawn within a matter of days.
65. On behalf of the SSHD, a witness statement of 12 December 2014 from Mr David Wiggins (the official referred to above) was served. Mr Wiggins was at a disadvantage in that his involvement in the case had been relatively recent and he could not give any evidence personally about events prior to 2014. His factual evidence was extremely limited, but he annexed a summary chronology and expressed an opinion as to what seemed to him to have been the reasons for the delays. He stated that he had been specifically asked not to deal with Yusuf’s case as that “was being treated separately by colleagues in the organisation’s Criminal Casework Directorate”. There was no evidence adduced from anyone in that Directorate. Throughout Mr Wiggins referred to Yasin as “the applicant”, as though he were the only claimant in the proceedings. He itemised the reasons for delay as he saw them as follows in paragraph 7 of the statement:
“a) The fact that the applicant was in the UK illegally moved him down the ‘priority’.
b) Serious wider backlogs of outstanding asylum cases.
c) The apparent lack of any ‘exceptional circumstances’ related to the application.
d) A failed application for asylum.
e) A failed application for the ‘Family Exercise’ concession.”
66. The only other evidence provided by the SSHD up to an including the hearing on 19 December 2014 was a draft witness statement of Ms Sharon Chambers “the national lead for complaints within the UK Visas and Immigration Service of the Home Office”, giving details of the Home Office’s internal complaints system upon which the SSHD was by then relying upon as a substitute for the present proceedings. The signed version of the statement in the papers before us is dated “23/12/14”. It seems, therefore, that all that could have been deployed would have been an unsigned draft.
67. The Amended Grounds of Resistance (settled by Mr John McKendrick of counsel) and dated 15 December 2014 acknowledged that the SSHD had failed to take the material decisions in a timely fashion and accepted that there had been maladministration. They also stated the SSHD’s position to be as follows:
“11. The position of the defendant, in summary, is that:
a. permission has only been granted in respect of the omission to make relevant immigration decisions and permission has not been granted in respect of the 9 October 2014 or 13 November 2014 decisions;
b. the defendant opposes the grant of permission in respect of 9 October and 13 November 2014 decisions;
c. should permission be granted, no order has been made for a ‘rolled-up’ hearing and the substantive determination of these matters cannot fairly proceed a the forthcoming hearing;
d. the defendant opposes the grant of relief by way of a declaration in respect of the period of delayed immigration decision making;
e. the defendant opposes relief by way of damages under Human Rights Act 1998 and submits even if the claimants can establish their right to damages, this cannot be dealt with at the forthcoming hearing because:
i. contrary to paragraph 90 of the amended grounds, the claimants have not set out their case – the defendant cannot respond;
ii. the witnesses will be required to be cross-examined;
iii there is no evidence in respect of causation;
iv. the defendant has not been able to properly prepare and respond to the claimants’ evidence in the limited time frame given.
f. the defendant remains prepared to pay the claimant’s reasonable costs until 16 October 2014;
g. the defendant seeks an order requiring the claimants to pay, and be jointly and severally liable, for her costs of defending these proceedings from 17 October 2014 to date.”
68. Prior to service of the defence document there had been no invitation to the respondents to agree to an adjournment of the proceedings or any indication given as to the nature of any further evidence (oral or documentary) that was said to be needed by the SSHD before a full hearing could take place.
69. At the hearing on 19 December 2014, the SSHD was represented by Mr McKendrick and the respondents were represented by Ms Chandran and Ms Solanki.
70. As will already be apparent, at the hearing on that day, the judge granted permission to amend in terms of the draft already supplied and to which the SSHD had pleaded grounds in resistance. He refused such adjournment as may have been requested. He effectively decided to proceed by way of a “rolled up” hearing. His reasons for taking these decisions appear in his final judgment.
71. Naturally, we were anxious to hear from counsel how these matters were handled at the beginning of the hearing. For this we had to rely solely upon the account given by Ms Chandran, with Ms Solanki’s assistance, as there was no one on the SSHD’s side of the record present before us who could provide any other information.
72. Ms Chandran told us that Mr McKendrick indicated to the judge that he wanted an adjournment of any substantive points, but was in any event asking for a stay of the proceedings (as I understand it) for the purpose of deploying the complaints procedure. He argued that the respondents’ Article 8 damages claim was not particularised. The judge asked what further material the SSHD needed before proceeding to a substantive hearing. Ms Chandran said that she submitted to the judge that Mr McKendrick could not give any detail about this. Ms Chandran said she opposed any delay and told the judge that the respondents were only seeking a determination of “liability”, with other issues relating to the money claim to be tried at a later date. After these exchanges, the judge must have indicated that the case was to proceed and the judge gave his reasons for refusing an adjournment in his substantive judgment.
(E) The Judgment
73. In his main judgment (paragraphs 280-290) the judge dealt with the application for permission to amend the claim. He reviewed the history of the proceedings and the procedural orders made and the failure by the SSHD to make the relevant decisions within the times volunteered in the acknowledgment of service and elsewhere. He considered that the possibility of claims for damages must have been envisaged by the SSHD in the light of the history. He noted the admission of “maladministration”. He referred to the agreement that any quantification of damages would have to be made at a further hearing. He decided that permission to amend should be given.
74. In the same judgment (paragraphs 291-299), the judge decided that permission to apply for judicial review should be granted on all grounds.
75. He then turned to the question of the application for adjournment of the hearing. The judge concluded that the SSHD had not been prejudiced by the case proceeding as it did, other than by deficiencies of her own side’s making. He concluded that the respondents’ cases had been adequately particularised by the Amended Grounds and detailed witness statements. He saw no need for cross-examination at this stage and none had been requested before service of the Detailed Grounds of Resistance. Any question of damages would follow at a later stage. The judge also stated that the SSHD had only served brief witness evidence. He said,
“It is therefore clear that the SSHD has neither the wish nor the ability to obtain further evidence if an adjournment was granted.”.
76. The judge concluded as follows, at paragraph 304 of the judgment:
“304. Conclusion. The claimants waited for over ten years to obtain decisions from the SSHD and two of those decisions are now challenged on substantial grounds. Furthermore, it has conducted this judicial review with scant regard to its procedural obligations. It would be unfair and unjust in the extreme to grant its adjournment request thereby causing further delays, particularly since it has not made out any ground for being granted further time to prepare its case.”
77. Also on 19 December 2014, the SSHD argued that the proceedings should be stayed because they had become academic in the light of the decisions taken in October and November of that year. It was submitted that Yusuf had his remedy by way of appeal against the deportation order; Yakub had had an offer of reconsideration of his limited leave to remain (made on 9 December 2014) in the light of further evidence submitted and the damages claim was properly covered by the internal complaints system.
78. The judge rejected these arguments, partly on the basis of the long delay in the processes to date and the fact that (in the judge’s view) the claim was properly ready for trial in court. He also gave other distinct reasons, with regard to each claimant, for saying that there was value in continuing the proceedings in view of what he saw to be the inadequacy of the suggested alternative remedies.
79. The judge’s decision to set aside the decisions of the SSHD in respect of Yusuf and Yakub involved a detailed consideration by the judge of the impact on those decisions of the Rehabilitation of Offenders Act 1974 (“ROA 1974”), the UK Borders Act 2007 (“UKBA 2007”) and the Legal Aid Sentencing and Punishment of Offenders Act 2012 (“LASPO”). The question was whether the SSHD had been entitled at any stage or stages, and if so at which, to take into account the convictions of Yusuf and Yakub in making her decisions in their cases. For reasons which will become apparent, it is not necessary to embark on that same process here. However, it is necessary to record the judge’s finding that in each case the SSHD had failed properly to take into account the fact that Yusuf’s old conviction from 2004 and all but one of Yakub’s convictions were “spent” at the date of the decisions made in October and December 2014. The one “unspent” conviction in Yakub’s case was from June 2013 for which he had received a community sentence in the Magistrates’ Court.
80. In short, the judge decided, in Yusuf’s case, that his 2004 conviction became spent (retrospectively back to June 2010) on 12 October 2012. Thus, the conviction became irrelevant for the purposes of his outstanding application for leave to remain by virtue of the transitional provisions of LASPO: section 141(9) of that Act. Accordingly, the department handling his case in the early part of 2014 should not have referred it to CCD for decision as to whether deportation should be initiated; it should have proceeded to determine the application without reference to the conviction. In other words, if that department had correctly applied the rehabilitation provisions, Yusuf’s case would not have been referred by them to the officials competent to take deportation decisions. That would not have precluded a future consideration of deportation in Yusuf’s case because of the exclusion of deportation from the same transitional provisions of LASPO. However, said the judge, if any subsequent issue of deportation arose, the fact that Yusuf had recently been granted leave to remain could not but have affected the decision making process in any later consideration of whether a deportation order should be made.
81. The judge considered the argument raised by the SSHD, in Yusuf’s case, that he had a proper alternative remedy by way of his appeal against the deportation decision which he had brought, in time, after the November 2014 decision. It was accepted, however, by counsel for the SSHD that the only ground of appeal would be on the basis of a failure to have regard to Yusuf’s Convention rights. Other arguments of alleged unlawfulness or unfair process would not be open to him in the appeal process in the Tribunal.
82. At paragraph 401 of the judgment, the judge sets out, under eight headings, the submissions of Yusuf’s counsel (which the judge accepted) as to the arguments that would be open to Yusuf in the current proceedings but which would not be available on the appeal. These included the arguments as to the incorrect application of the rehabilitation provisions, the long delay before deportation had even been contemplated, the lawfulness of the combined decision on the settlement application and on deportation, etc. The judge decided that the appeal was not, therefore, a true alternative remedy to judicial review.
83. The judge then proceeded to consider the impact of the legislative provisions and changes to the Immigration Rules which had begun to take effect from July 2012 and to decide the question as to how the SSHD ought to have dealt with the deportation issue in Yusuf’s case: see paragraphs 403-428 of the judgment. He reached the conclusion that the decision on Yusuf’s settlement application should have been reached favourably to him before any question of deportation arose and that any deportation question, because of the delay, should have been resolved in practice without need for reference to the more stringent measures affecting foreign criminals introduced into the Immigration Rules in 2012 and by the amendments to the Nationality Immigration and Asylum Act 2002 in 2014 (paragraph 428 of the judgment).
84. Nonetheless, as the judge recognised, the new provisions were in force at the time of the deportation decisions made in 2014. He considered the deportation decision and identified what he found to be a number of flaws in it, including the inadequacies of the decision making processes which he had already found, and the substance of the decision as to Yusuf’s family life (including his parents, his four children and their mothers).
85. The judge also found that the deportation decision had stated that Yusuf had been recommended for deportation by the judge who had sentenced him in 2004. I cannot find any such statement in the copy of the deportation decision before us (pp. 589-599 of the Appeal Bundle). However, it should also be noted that the quotation which the judge included in his judgment (paragraph 441) was from paragraph 91 of the same letter and does not seem to tally with the letter in the form before us.
86. The judge decided that the whole of the decision of 13 November 2014 to deport Yusuf and to reject his September 2004 settlement application should be set aside. In his order he made the declaration that the delay in making a decision on the settlement application from 20 December 2004 was unlawful.
87. In Yakub’s case, as already noted, the SSHD had already offered to re-consider her decision before the hearing before the judge on 19 December 2014. The judge took this to be an offer to reconsider the case in the light of Yakub’s witness statement in the proceedings which merely gathered together material known to the SSHD from other sources before the October decision had been taken: see paragraph 374 of the judgment. However, there was no offer to withdraw the decision of October 2014.
88. The judge says (at paragraph 376) that, after the hearing, he asked for submissions from the parties as to whether Yakub’s convictions were spent. In submission dated 26 January 2015, the SSHD (through counsel) conceded that the decision of 9 October 2014 should be set aside.
89. Summarising considerably the judge’s lengthy further consideration of the background to Yakub’s application for settlement, he concluded that the decision in his case should have been reached consistently with the ILR decision in Yasin’s case and without regard to the spent convictions. Accordingly, the judge set aside the decision in his case and made the declaration that the delay from 20 December 2004 had been unlawful.
90. The judge made a similar order in Yasin’s case.
(F) The Appeal
91. In my judgment, it is important to concentrate upon the grounds of appeal as drafted, said to have been “interim” but which were never amended. I have set out those grounds in paragraph 4 above. It is those three grounds for which permission to appeal was granted by Hallett LJ. She did not give permission to argue some of the wider points advanced in the later skeleton arguments presented by the SSHD. Indeed, the grounds of appeal identified in paragraph 10 of the skeleton argument before Hallett LJ, for which she gave permission to appeal, were precisely those contained in the initial grounds of appeal.
92. In particular, it has to be noted that at the outset of the appeal process, in the interim grounds of appeal, it was noted that the judge had quashed the leave to remain and deportation decisions in respect of Yakub and Yusuf and it is stated expressly that the SSHD “does not wish to challenge these orders on appeal”. It was said there that the appeal was concerned with the judge’s declarations that there was unlawfulness from 20 December 2004 and that the resolution of the respondents’ claims to compensation could not be compensated by the complaints procedure. A similar statement as to the limited ambit of the intended appeal appears in paragraph 28 of the same document. Further, in refusing a stay of the judge’s interim costs order on 27 May 2015 Floyd LJ had expressly referred to areas of the case before the judge which were not to be the subject of any appeal. No attempt was made at that stage either to withdraw the statements as to the limited nature of the appeal.
93. In a third skeleton argument of 14 December 2017 Ms Anderson states:
“… Permission to appeal was granted by Lady Justice Hallett on all grounds pursued in the Appellant’s permission skeleton argument, noting that this was a most unusual case in a number of respects. The Appellant’s permission skeleton argument, upon which permission was granted, stated in terms in the first paragraph that “The Secretary of State asks that the decision of the Deputy Judge be set aside and with it the entire Order…for the avoidance of doubt all aspects of the Order consequential on the judgment are challenged”… .”
It seems to me that Hallett LJ made no such order. There can be no conceivable challenge now to the orders setting aside the decisions of 26 October and 13 November 2014 in the cases of Yusuf and Yakub. The concession on that point had been made unequivocally in the grounds of appeal as initially presented and that concession was never withdrawn by way of amendment with the permission of this court and it must, therefore, stand. No application was ever made to amend the grounds and it was, as I have said, on those three grounds that Hallett LJ gave permission to appeal. On that basis, I would reject Ms Anderson’s submission that the decision of the judge should be set aside and with it his entire order. The only matters open on the appeal were those encompassed in the three grounds as stated. I agree with the respondents’ submissions on this point as set out in paragraphs 1 to 10 of their skeleton argument of 9 January 2018.
94. It is convenient to address the grounds of appeal in a rather different order from that in which they were argued by Ms. Anderson before us at the hearing. Ms. Anderson addressed ground 3 first and I will do the same. However, I will then look at ground 1 (unlawful delay and breach of article 8). Then, I will deal with ground 2 (the possible alternative remedy under the UKVI complaints procedure). I take matters in this order as it seems to me that one cannot properly assess the practicality of the complaints procedure until one has considered the nature of the claim for “just satisfaction” advanced by the respondents.
Ground 3
95. The consideration of this ground appears to me to fall into three stages. First, there was the judge’s decision at the first hearing on 16 October 2014 to countenance the possible amendment of the judicial review grounds to permit a claim to financial compensation in respect of the delays in dealing with their cases. Secondly, there followed the judge’s decisions to allow amendment to the claim and to proceed to a “rolled up” hearing, without adjournment. Thirdly, there followed the judge’s long judgment, said to cover areas beyond the matters addressed in the arguments and analysing the underlying causes of the long delays in this case.
96. On the first point, as I said above, I do not find it surprising that the judge raised with the parties the possibility of a money claim. The judicial review claim had been outstanding for over 1 ½ years and the acknowledgement of service had promised a decision on one of the claimant’s cases by 29 November 2013; it made the surprising suggestion that the proceedings should be dismissed, even before any substantive decisions had been made in the respondents’ cases. The fact of the decisions in Yasin and Yakub’s cases had only just been given by the time of the first hearing before the judge in October 2014. Permission to apply for judicial review had been granted in July 2013, with the Deputy Judge remarking that it was well arguable that the delay was unlawful. She had directed grounds of resistance to be served within 35 days. They had not been served. A notice of liability to deportation had been sent to Yusuf in September, but no decision had been communicated in respect of his settlement application made in 2004, even by the time of the hearing fixed for 16 October 2014. The judge was told of decisions made in respect of Yasin and Yakub, but, as far as the judge was aware, the SSHD was still in default in respect of the service of grounds of resistance and, accordingly, there was no obvious answer to the Deputy Judge’s impression, over a year previously, that the delay had been unlawful. The SSHD’s whole approach must have appeared to the judge as simply lackadaisical.
97. In these circumstances, it seems to me to have been sensible for the judge to canvass what outstanding matters there were in the case and my view is that he could not be criticised for asking whether the respondents intended to make a money claim. When the possibility of that claim was known, it would not have been clear whether or not the current proceedings were truly academic as the SSHD disarmingly sought to argue. Both at that hearing and at the hearing on 19 December 2014, the judge would have had to consider the desirability or otherwise of allowing the additional claim to be ventilated in the present proceedings or to be left over to be made (if so advised) in separate proceedings or some alternative dispute resolution procedure.
98. The judge gave directions for disclosure and for service of amended grounds of claim and grounds of resistance. I do not think that he can be faulted in the exercise of his procedural discretion in making these directions. In view of what must have seemed to him in October 2014 the egregious delay by the SSHD and the failure to comply with the Deputy Judge’s procedural directions, it seems to me to have been quite proper for him to see what decisions were finally made by the SSHD on the applications and to see what the draft amended pleadings on both sides might reveal. It would then be for the court to decide whether the re-formulated claim could properly be tried in the current proceedings and, if so, in what manner.
99. I will return shortly to the parties’ submissions on the desirability or otherwise of “rolling judicial review” when considering the matter overall in the light of the judge’s decision to proceed with a full hearing on 19 December 2014.
100. Disclosure was provided and pleadings were served under the judge’s directions order. Those steps revealed the “shape” of the respondents’ further claims and the response to them. The documents disclosed by the SSHD would also have revealed for the first time something of what had been going on (or not going on) within the Home Office in the preceding 10 years.
101. The service of the respondents’ draft amended grounds of 2 December 2014 only served to prompt the suggestion for the first time (by letter of 9 December, enclosing a draft consent order) that proceedings should be stayed pending a reference of the money claim to the internal complaints system and resolution of Yusuf’s statutory appeal against the deportation decision. Still no substantive defence had been served by the SSHD.
102. The substantive grounds of resistance are dated 15 December 2014 and were served on 16 December (3 days before the hearing): see the skeleton argument of the respondents before the judge, paragraph 25 (AB/3/1694). In that document, as already mentioned, the SSHD’s position for the hearing on 19 December was set out in paragraph 11, including the submission that if (contrary to earlier arguments) permission to amend/to apply for judicial review were granted, “the defendant opposes relief by way of damages…and submits that even if the claimants can establish their right to damages, this cannot be dealt with at the forthcoming hearing…”. This was said to be because the respondents’ case was not set out, cross-examination would be necessary, there was no evidence of causation and the SSHD had not been able properly to prepare and respond. However, apart from the invitation to agree to the stay, there appears to have been no prior request for an adjournment of the proceedings or any indication of the steps that the SSHD wished to take in further preparation of a defence. Certainly no application was made to the court for any such adjournment, before the hearing on 19 December 2014.
103. Notwithstanding the intimation of an application for an adjournment, the grounds of resistance set out clear grounds of defence to the issues of unlawful delay and to the allegations of unlawful decisions in the cases of Yakub and Yusuf. The SSHD could have had no ready expectation that an adjournment would be granted and would have had to prepare substantively for the full hearing, if the judge so directed.
104. It is clear that the judge resolved to leave over questions of any damages (subject to liability, if established) (including causation) to a further hearing. Once that course of action was in view, the judge had to decide whether the issues on “liability” (to use a loose phrase in this context) could go ahead in the current proceedings and, if so, whether that could be achieved at the hearing on 19 December.
105. What the draft pleadings disclosed was that clear battle lines had been drawn between the parties as to whether this case, notwithstanding the concession that there had been maladministration, crossed the line where “mere” maladministration and had gone had gone into the realms of culpability on the part of the SSHD and serious impact upon the respondents rights under Article 8 of the ECHR: see Anufrijeva v Southwark LBC [2004] QB 1124.
106. Ms Anderson accepted before us that the question of “liability” in cases of this type could properly be framed as it was by Collins J in R (FH & ors.) v SSHD [2007] EWHC 1571 (Admin) at [30] and would turn upon whether “… the delay [was] so excessive as to be regarded as manifestly unreasonable and to fall outside any proper application of the policy or if the claimant is suffering some particular detriment which the Home Office has failed to alleviate…”. Both Anufrijeva and FH were quoted by the parties in their pleadings/skeleton arguments before the judge.
107. As the judge said, and as Ms Chandran submitted to us, the SSHD had filed only two witness statements and had given no indication at all as to what further evidence, if any, she wished to adduce upon the liability issue and/or the lawfulness of the decisions in the cases of Yakub and Yusuf. The documents had been disclosed by the SSHD and her legal team must have been well aware of the criticisms of delay for a very substantial time indeed. In view of the very significant delays to date, it seems to me that it behoved the judge to see whether the delays could be put to an end and a conclusion reached, unless relevant material prejudice to the conduct of the case for either party was shown.
108. Ms Anderson argued before us that the judge was wrong to permit a “rolling judicial review” of this kind in this case and she referred us, in this context, to Caroopen v SSHD [2017] 1 WLR 2339. That case concerned the desirability of allowing into consideration, in judicial review cases, new decisions made by a public authority after the decision initially challenged in the proceedings. The court held that there was nothing inherently wrong in permitting the Secretary of State to deploy supplementary decision letters post-dating the initial challenge in seeking to justify the original decision taken. Of course, “sauce for the goose is sauce for the gander”, and the SSHD cannot, in principle, be surprised when litigants choose to challenge the lawfulness of fresh decisions made, after the commencement of review proceedings, or to make supplementary claims.
109. Ms Anderson cited, in particular, the judgment of Black LJ (as she then was) in Caroopen (at [105]) as follows:
“105. As Beatson LJ says, cases such as these demonstrate the tension between principle and pragmatism. Neither Underhill nor Beatson LJJ seek to outlaw “rolling judicial review” completely. It has disadvantages, as the authorities show, and those disadvantages have been identified and discussed in R (A) v Chief Constable of Kent Constabulary (2013) 135 BMLR 22 and R (Tesfay) v Secretary of State for the Home Department [2016] 1 WLR 4853 : see para 57 above. It can also serve a useful purpose. A degree of flexibility is required, but also a clear recognition that there will be cases in which the problems generated by the practice, whether for the court or for the litigants, dictate that it should not be countenanced. Procedural formalities are one of the safeguards of fairness in litigation. They can play an important part in ensuring that proceedings have a clear focus, that the material relied upon by each side is clearly identified in a timely fashion, and that the arguments address the issues that fall for determination.”
As that quotation demonstrates, as do the differing circumstances considered in R (A) v Chief Constable of Kent and the Tesfay cases (cited by Black LJ), “a degree of flexibility is required” together with a recognition of the importance of procedural safeguards.
110. I said to Ms Anderson in the course of her argument that I had not been a particular supporter of the “rolling judicial review”. However, I recognised and accept that decided cases have shown that cases are infinitely different and flexibility is desirable, allowing for rolling judicial review where appropriate. The touchstone must be fairness to the parties. What is fair must be a question for the good sense of Administrative Court judges on the facts of each individual case.
111. It seems to me that the Amended Grounds of Claim and the skeleton argument for the respondents before the judge set out clearly the significant points arising from the immigration and correspondence history, which founded the respondents’ case on delay, and also the challenges to the lawfulness of the decisions made in the cases of Yakub and Yusuf. The material evidence was almost wholly documentary to be derived from the SSHD’s own files. I consider, therefore, that the judge was entitled to decide that permission could be given to amend the grounds of claim and that the grounds of challenge could fairly be dealt with on a “rolling judicial review” basis and at a “rolled up hearing” on the date that had been long fixed for hearing of the case. It had not been suggested in the directions order, or subsequently, that the 19 December should be a further directions hearing only nor was it suggested the estimated length of hearing was too short.
112. Ms Anderson further argued that the judge erred in making his own personal assessment of the events over the 10 year period and how the various delays occurred, going beyond the ambit of the arguments deployed before him. It is perhaps fairest to summarise this point by reference to the skeleton argument originally presented in support of the appeal. In that document, Mr McKendrick submitted:
“h. the learned judge in his judgment has in effect conducted a wholesale fact finding against factual matters he was never asked to determine; he has made factual findings in respect of a vast range of issues (some of which predate the 2004 period of delay) that were not put in issue in the respondents’ amended grounds of claim; (the key issue was how the respondents’ should be compensated for the delayed decision making: a claim for damages before the courts or reliance on the UKVI complaints process); … .”
This was one of ten sub-paragraphs of the argument presented upon ground 3. No further detailed criticism was provided. A similarly broad submission was made in paragraph 16(ii) of the skeleton argument before Hallett LJ. Hallett LJ, in granting permission to appeal on the three identified grounds on 16 March 2016, went on to say this,
“There are a number of concerns about the judgment but the Appellant needs to focus on the most compelling.”
113. The final skeleton argument adduced by the SSHD for the appeal, which was dated 14 December 2017, rightly in my view having regard to the advice given by Hallett LJ in her permission to appeal order, concentrated on the three broad grounds of appeal without taking issue with the individual findings of the judge about the decision making history in the case. The short submission (in paragraph 39) of that final skeleton was this:
“39. The terms of the Judgments demonstrate the unorthodox post-hearing personal examination of the materials and the unbalanced approach relying on erroneous speculation and supposition. The Deputy Judge’s findings go far outside the normal parameters for judicial decision including by purporting to determine a range of matters that were not in issue and could not be fairly determined by him. It is fair to conclude that the “Judge’s reasoning is profoundly unsatisfactory and unfair and does not come close to justifying the factual findings that he made”. Considered overall, the Deputy Judge’s conduct of the proceedings would cause a neutral and well-informed bystander to doubt that the required high standards of impartiality and fairness had been adhered to.”
114. It will be seen that that submission merged into an argument based upon lack of impartiality and fairness on the part of the judge. In the earlier skeleton argument before Hallett LJ the word “bias” was used. It was not used in the final document. However, in an earlier passage of the same final skeleton (paragraph 28), criticising the judge’s reasoning in granting permission to amend and in deciding to permit a “rolling judicial review”, because of the long wait the respondents had experienced in waiting for decisions on their applications, the following was said:
“28. …That is not a proper justification. If this reference indicates that the Deputy Judge wished to remedy that position by retaining control of the case to decide it in the Respondents’ favour in the short period before he retired, that was a breach of basic fairness in itself.”
That sentence appears to me to be a clear allegation of actual bias.
115. Wisely, I think, at the hearing before us, Ms. Anderson did not pursue any arguments as to bias, which the respondents had sought to counter in their skeleton argument of 9 January 2018. She concentrated her fire on the general point that the judge had conducted an objectively unfair process for the reasons that I have already summarised.
116. There is one further submission on procedure which I will mention here, without elaboration before stating my conclusion on ground 3. The point is that the judge is criticised for making a significant addition to his judgment after circulating and handing down an original draft and after stating the terms of his proposed order on 29 April 2015. It appears that he did so, without invitation to supply further reasons, after he had been made aware of one of the proposed grounds of appeal. In particular, the judge added material to the decision that he had made in the first draft judgment dealing with the SSHD’s arguments based upon the case of MD (China) v SSHD [2011] EWCA Civ 453. I will return to that case more particularly when addressing ground 2 of this appeal below.
117. It was pointed out to us hat this court had already criticised this same judge for supplementing a judgment in a similar manner in the case of Brewer v Mann [2012] EWCA Civ 246. In that case, Rix LJ said this:
“31. …However, we feel that we can provisionally state that where a judge has received no request from the parties to reconsider his judgment or add to his reasons, and has not demonstrated the need in conscience to revisit his judgment, but on the contrary has received grounds of appeal and an application for permission to appeal on the basis of the alleged inadequacies of his judgment, then it would be most unwise for him to rewrite his judgment (other than purely editorially) and it would take the most extraordinary reasons, if any, to justify such a course on his part. It is also plain to us that this was not the case of a short judgment on a straightforward issue where an appeal might be avoided if the judge supplied further reasoning which had been requested of him.”
118. As I have already indicated, I consider that the judge’s procedural decisions at the hearings on 16 October and 19 December 2014 were ones which he could properly take, in the exercise of his discretion, in the light of the draft grounds of claim and grounds of resistance presented by each side, and in view of the extreme delay by the SSHD which was admitted to amount to maladministration. The disclosure provided, and obviously made available to the judge, underpinned the claims made in the grounds of claim. Those materials were sufficient, in my view, for him to decide whether the facts of this case went beyond “mere” maladministration into a category of case which could properly found a more than nominal financial remedy. It seems clear that the SSHD had no positive case as to evidence that she wished to call or other preparations that were required to resolve the points raised in the grounds. Thus, I consider that the rolled-up hearing that the judge conducted on 19 December was entirely viable. I do not consider that the judge can be said to have erred in principle in the exercise of his discretion in proceeding as he did on 19 December
119. It seems to me that the materials also enabled him properly to conclude whether the decisions taken at that stage in respect of Yusuf and Yakub were lawfully made. As already indicated, the SSHD did not challenge the orders setting aside those decisions, and she cannot do so now. So I need say no more about them.
120. I think, however, that the SSHD must be right in her submission that the extent of the matters decided by the judge went a good deal further than what the parties might have expected at the end of the hearing. I shall return to the consequences of that conclusion when I have considered the remaining grounds of appeal. I also return below to the question of the judge having significantly amended his judgment after the “hand down” of the original version. However, as will appear, I would reject this ground of appeal.
Ground 1
121. Ms Anderson argued that the judge erred in finding that there had been an unlawful delay by the SSHD in failing to deal with the respondents’ 2004 applications. She argued that the judge was wrong to deal with the cases as requiring decision by 20 December 2004, the 13 week date stated in the letters of 9 September 2004 being only a “target date” for consideration of applications for indefinite leave to remain “(outside the Legacy process)”. She submitted that the cases of these respondents were properly “legacy” cases for which a lengthy, but systematic resolution procedure had been implemented in the Home Office. This was, I think, the narrow part of this ground of appeal.
122. On the wider field, although not distinctly appearing in the final skeleton argument, Ms Anderson submitted that, while maladministration had been conceded, the delays were not of a sufficiently serious character to give rise to a claim to arguable breaches of Article 8 and a resultant damages claim.
123. Of course, the respondents’ cases were only referred to the “legacy” process in response to a chasing letter from solicitors in November 2006: see above. Thus, if the judge was right that the matter should have been resolved by December 2004, the “legacy” process, even if properly relevant, did not excuse the delay up to that date, and beyond, and until late 2006.
124. Looking at the “legacy process” more generally, however, Ms Anderson argued that the respondents’ cases were referred into that class of case “for which special administrative arrangements had been put in place with the aim to work through the backlog over 5 years” (final skeleton argument, paragraph 49). Ms Anderson referred us to FH, R (Geraldo & ors.) v SSHD [2013] EWHC 2763 (Admin) and R (SH) (Iran) v SSHD [2014] EWCA Civ 1469.
125. There seem to me to be two answers to this part of this ground of appeal. First, as Ms Chandran submitted, it was not part of the SSHD’s case before the judge that these were “legacy” cases at all. Secondly, I agree with the respondents’ further argument, and with the judge, that the respondents’ 2004 applications for leave to remain and for settlement were never properly within the ambit of the “legacy” scheme in the first place. I agree that this probably explains the failure to rely on the point before the presentation of the final skeleton argument for this appeal.
126. On the first point, there is no mention at all, in any of the defence documents before the judge, that the answer to these claims lay in their being included in the “legacy” programme. No mention is made of it in the Acknowledgement of Service or in the Detailed Grounds of Resistance. The point was not raised in the Interim Grounds of Appeal document settled by Mr McKendrick. The point made there was that the delay could not be unlawful unless “manifestly excessive” and/or because claimants had suffered “particular detriment”, relying upon FH. I accept, of course, that FH was dealing with a number of “legacy” cases, but no point seems to have been made that the present cases were properly within that category. Further, the argument was that the admitted maladministration did not impact severely on the respondents’ private and/or family life, relying upon Anufrijeva. (See in this respect paragraph 16 of the interim grounds document.).
127. In the second skeleton argument presented by the SSHD, reference was made (in paragraph 33) to “…the extensive jurisprudence concerning the so-called ‘legacy’ cases…” and (in paragraph 37) to “…the ‘legacy’ case of Geraldo…”. There was no submission made that these present cases were themselves legacy cases.
128. On the second point, it seems to me that the judge cannot be faulted for finding that these were not legacy cases at all. The legacy programme related to cases in which asylum claims had been made before 5 March 2007. Yusuf and Yakub had only ever been dependents upon the asylum claim of their mother, Laila. That claim was refused and her appeal was disposed of in September 2001 and with it, the dependent claims of her two sons who never made any asylum claims in their own right, either before or after that date. Laila became a British citizen in 2003 and the family then sought leave to remain as members of her family.
129. So far as Yasin’s case was concerned, it may be that his circumstances fitted the criteria for consideration as a ‘legacy’ case, but for the 2004 applicatons. However, as the respondents submitted (paragraphs 44-45 of their skeleton argument) he had also made a “fee paid” application for leave to remain and settle, based upon the grant of British citizenship to Laila. That application had been accepted with a statement that it would be dealt with as such. It seems to me that this distinguishes his case from that of the cases considered in the authorities relied upon by Ms Anderson. That application by Yasin could not be disposed of simply by shunting it into the side-line of legacy cases when the settlement application had its own intrinsic merit or de-merit. It deserved proper consideration within reasonable timescales.
130. In any event, the SSHD concedes that there has been maladministration in dealing with the 2004 applications in all these cases and I am unable to see what is gained by the assertion that any of these respondents fell within the ‘legacy’ programme.
131. I turn to the wider element of this ground of appeal, namely that maladministration alone does not found a claim to substantial damages.
132. I have already noted Ms Anderson’s acknowledgement before us that “manifestly excessive” delay and/or delay causing “particular detriment” to the victim can properly give rise to such a claim, as was also accepted in paragraph 16 b. of the grounds of appeal.
133. It is right also, however, that I should refer in this judgment to the passages in Anufrijeva to which we were taken at the hearing. I will not recite large sections of the judgment verbatim, which would only lengthen what is already a long judgment. I would merely mention paragraphs 57 to 62 and 74 to 78 of the court’s judgment in particular: [2004] QB at 1155-6 and 1159-60.
134. From these paragraphs I think the following can be derived:
(1) The approach to awarding damages for breach of Article 8 rights should be no less liberal than those applied by the ECtHR;
(2) The applicant should be put, so far as possible, in the same position as if his rights had not been infringed;
(3) There is a disinclination to recognise that maladministration resulting in delay engages article 8 at all, “unless this has led to serious consequences”;
(4) Awards of damages in tort indicated by the Judicial Studies Board (as it then was) and by the Criminal Injuries Compensation Board and the Ombudsman may provide “rough guidance”;
(5) There are good reasons why, where breach arises from maladministration, damages should be modest;
(6) However, awards should not be minimal as this would undermine the respect for Convention rights, but a “restrained or moderate approach to quantum would provide the necessary degree of encouragement to public authorities…”;
135. There are other passages in the case to which I will have to refer under ground 2.
136. The respondents referred us to Home Office v Mohammed [2011] EWCA Civ 351 in which claims were made that certain applicants had experienced lengthy periods with “no right to work… no entitlement to mainstream welfare benefits, no possibility of travelling abroad (for instance to see families), and no means of opening a bank account or obtaining a driving licence, as well as postponement of the eventual goal of obtaining UK citizenship…”. We were asked to note that, in that case while conceding nothing, the SSHD accepted that the claims raised triable issues. The respondents submitted that the claims made by these respondents were of that character.
137. We were also referred briefly by the respondents to certain recent authorities in the ECtHR which, they submitted, demonstrated the levels of award of monetary “just satisfaction” now made for maladministration which results in Article 8 breaches: B.A.C. v Greece [2016] 11981/15 and Kuric v Slovenia [2014] ECHR 262 and 489.
138. In my judgment, without needing to endorse every finding of the judge as to what would have been the consequences of an earlier resolution of the respondents’ 2004 applications, it seems to me that the judge was fully entitled to find that what happened in this case crossed the threshold of “mere” maladministration and into “manifestly excessive” delay and that a trial of the causation and other damages issues might give rise to an award of significantly more than “nominal” compensation. I make no decision whether that would be the result or not; I find that the judge was right to make the finding of “liability” and to direct a further trial of the compensation claims.
139. This is subject to ground 2, i.e. whether the judge was right in declining to stay the proceedings for reference to the UKVI internal complaints procedure.
Ground 2
140. I have dealt with ground 1 first because it seemed to me that it was necessary to examine first whether the judge was entitled to find that there was a case made out for there being a proper claim by these respondents to a more than nominal money award in “just satisfaction” for the admitted maladministration. In my judgment, as I have said, the judge was entitled so to find.
141. The SSHD’s case on this point is again derived from Anufrijeva. In paragraph 79 and following, the court expressed concern that costs in this type of proceedings can well exceed the level of damages likely to be awarded. In paragraph 81 of the judgment in that case it was said that, “[b]ased upon the experience available at present…”, before granting permission to apply for judicial review, the court should require the claimant to explain why it would not be more appropriate to use an internal complaints procedure or to proceed with a complaint to the relevant Ombudsman, the time scale appearing to the court to compare favourably with that of litigation.
142. We were also referred to R (MD) (China) v SSHD [2011] EWCA Civ 453. In that case, this court decided that the Administrative Court judge (Treacy J, as he then was) had been correct to stay proceedings before him, pending a reference to an internal complaints procedure. The case concerned the failure, over various periods of months, to provide “status papers” to successful asylum seekers. In upholding the judge’s decision, Sir Anthony May P said:
“13. In our judgment, the judge was entirely correct to decide that the continuation of these proceedings is pointless and disproportionately expensive. Although there may be circumstances in which inviting the court to declare that a person’s Article 8 rights have been violated is justified by a legitimate need to establish that and for vindication, the circumstances of the present cases do not begin to provide such justification. The claimants’ status papers have long since been issued. The Secretary of State has openly accepted that the delay was unacceptable maladministration and has apologised without reservation. Steps have been taken to rectify the administrative deficiencies which led to the delays. A properly structured complaints procedure is available and has been set in motion to assess compensation. Establishing that the admittedly unacceptable delay resulted, if it did, in a violation of Article 8 rights will not materially enhance the existing law, will not enlarge the ambit of compensation, will not assist in the disposal of other cases, and will not provide the claimants with greater vindication or comfort than they already have. It would constitute an egregious accretion of human rights paraphernalia to a body of learning which is already at risk of overburden, whose real value to the law would be minimal and to the claimants nil. The money already spent on these proceedings after the Secretary of State conceded the case has been disproportionate. To spend further money would be horrendous, to use Lord Woolf’s expressive adjective.”
143. It was submitted for the SSHD that the judge here should have taken a similar view and was wrong not to have done so.
144. I reject that submission. The MD case was entirely different on its facts. The court was dealing with short periods of delay and the complaints procedures were clearly apt to deal with the admitted maladministration there. The court clearly did not consider that the claims indicated a necessary minimum level of severity of interference with family life had occurred: see paragraph 2 of the judgment. In the present case, the court was faced with delays, not simply of months, but of over 10 years in dealing with the claims of three applicants for settlement all of whom were close family members of a British citizen. The history was far more complex and the court was faced with prima facie evidence of significant inference with family/private life. The claims were of an altogether different order. They also clearly give rise to significant issues of causation which a further trial would be needed to determine.
145. Further, what was known of the nature of the complaints system did not give much support to the view that it was appropriate for these claims. The evidence adduced by the SSHD from Ms Chambers, the “lead for complaints within UK Visas and Immigration Service of the Home Office” set out the bare bones of the complaints system and exhibited a document entitled “Complaints Management Guidance”. Ms Chambers said that standard response time was 20 working days, “except for serious misconduct complaints, where we have 12 weeks to respond”. The statement concluded with this:
“6. During the complaints process we will consider re-imbursing any out of pocket expenses incurred to the complainant if during our investigation it is found that we are at fault and costs were a direct consequence of our actions. We will also in exceptional circumstances consider whether a consolatory payment may be appropriate.”
146. Ms Chambers’ statement is borne out by the fact that the SSHD’s response to the respondents’ complaint, very speedily withdrawn, was to offer a mere £500 to Yasin in respect of the entire complaint.
147. It seems to me that, in suggesting the reference of these cases to the complaints procedure and in pitching the offer of compensation, the SSHD simply failed to grasp the scale and seriousness of the complaints being made and of the delays that had occurred. Even in July 2013, on the grant of permission to apply for judicial review, the Deputy Judge had given a clear indication that it was well arguable that the delay was not just maladministration but was also unlawful. Even then the proceedings had failed to achieve decisions in any of the cases until close to or after the date of the first hearing. The history of the matter, even from the date of inception of the proceedings but also over many years before, speaks for itself.
148. In my judgment, it was not surprising that the judge found that the complaints procedure, suggested for the first time in December 2014, was not an adequate alternative procedure to a continuation of the judicial review claims which were ready for trial. He was correct to do so; the suggestion of referring this case to the complaints procedure was a hopeless one.
149. I would reject ground 2.
Final matters
150. Two matters remain: 1) the judge’s production (uninvited) of a second version of his judgment, following the hand down of the original version and the making of his final order on 29 April 2015; and 2) the judge’s evaluation of the causes of delay beyond what might have been expected after the hearing on 19 December 2014.
151. As to the first point, I accept that the judge should not have adopted this course, any more than he should have done so in Brewer v Mann. It was submitted for the SSHD (final skeleton argument paragraph 4) that in particular the new passages dealt with what the SSHD claimed was the “obligation” to pursue the dedicated Home Office complaints procedure (ground 2 above).
152. It is clear that the judge did add to his judgment on this point uninvited. I agree that he should not have done so. However, he had dealt with the SSHD’s arguments on the point in the earlier judgment and the thrust of his conclusion on those arguments did not change. Obviously what happened fuelled the SSHD’s team’s arguments which led to the “bias” allegation now no longer pursued. Nonetheless, ground 2 of the appeal grounds was either a good ground of appeal or it was not. The judge made an evaluation of the relevant point with which (with perhaps less vigour of expression) I find myself in agreement. In the circumstances, therefore, I do not find that the judge’s unwise attempt to supplement his reasoning on the issue caused any material injustice in the proceedings below, nor does it, in my view, affect the outcome of the appeal.
153. On the second point, again it seems to me that the judge could have justified the conclusions that he reached without such an extensive review of the underlying materials and the decision making process. It would have been sufficient for him to find, in shorter order, that the delays in these cases were indeed “manifestly excessive” and that there was a good case (as I think there is) that breaches of Article 8 had occurred, leaving it over to the “quantum” trial to determine the precise extent of the impact of the breaches on the family/private lives of the respondents.
154. However, the SSHD has no appeal against the individual assessments by the judge of each stage of the decision making between 2004 and 2014. She has appealed on the three broad grounds which I have addressed in this judgment. As already mentioned, at the hearing of the appeal, we invited a clear indication of precisely which facts as found by the judge, in his recitation of the history of the case, were not accepted. The thrust of the attack on the judgment, however, remained on the three broad grounds of appeal, but with reliance upon the new point about the “legacy” process. It was not suggested to us that any particular one or more of the judge’s factual findings would cause difficulty or prejudice to the SSHD in her defence in the postponed assessment of “just satisfaction”.
Conclusion
155. For the reasons given above, I would dismiss this appeal.
Lady Justice Rafferty:
156. I agree.
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