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R. (on the application of FH) v Secretary of State for the Home Department

DATE: 05 Jul 2007

A number of applicants (X) applied for an order that their applications to be allowed to remain in the United Kingdom should be considered forthwith by the respondent secretary of state. X also sought a declaration that the delay in determining their applications was unlawful. X were all “incomplete asylum cases”, in that their initial applications for asylum had been rejected, and their appeals against those decisions did not succeed, but they had not been removed from the UK. Two years, and in some cases over three years, previously they had submitted fresh claims based on further evidence or circumstances which were said to justify fresh consideration. The claims had not been considered by the secretary of state. One of the claimants (H) had an outstanding human rights claim still to be determined as the initial refusal in 2000 had pre-dated the enactment of the Human Rights Act 1998 . He had also submitted a subsequent marriage approval application. X submitted that the secretary of state had failed in his duty to decide upon the applications within a reasonable time and operated a system to deal with the backlog of applications which was unfair and unlawful.

Applications granted in part. It was incumbent on the secretary of state to ensure that applicants who claimed to be refugees had their claims dealt with in a reasonable time so that, if it was established, their rights under the European Convention on Human Rights 1950 could be exercised, R. (on the application of S) v Secretary of State for the Home Department [2007] EWCA Civ 546, [2007] Imm. A.R. 781 considered. It was not possible for the court to say that a particular period of time should be the limit of what was reasonable as it depended on the circumstances. The correct approach in deciding whether the delay had been unlawful, and had resulted from actions or inactions which could be regarded as irrational, should be the same as that when considering an alleged breach of Art.6(1) . The court did not have to determine whether a different or better approach could exist, but had to consider whether the delay resulted from a rational system. A system of applying resources which was not unreasonable and had been applied fairly and consistently could be relied on to show that delays were not to be regarded as unreasonable or unlawful. A large number of unmeritorious fresh evidence claims placed an inevitable burden on the system and additional resources had been injected into dealing with the backlog of incomplete cases which focused on those applicants who posed a risk to the public, were receiving support, might be granted leave or who could be more easily removed. None of the instant claims fell within the priority categories. It was probably possible to devise a better system for dealing with the applications but this did not make the existing one unlawful and the delays had neither crossed the abuse of process threshold nor that of the lower test of unfairness. The delays had been excessive, unsatisfactory and undesirable but were not so excessive as to be unlawful for that reason alone. Nevertheless, H fell into the category of an exceptional case. His outstanding human rights claim was more akin to that of an initial claim. That claim and his subsequent marriage approval application should be subject to immediate consideration.

Samantha Broadfoot acted for the respondant