Said & Ors, R (on the application of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, April 29, 2015, [2015] EWHC 879 (Admin)

Resolution Date:April 29, 2015
Issuing Organization:Administrative Court
Actores:Said & Ors, R (on the application of) v Secretary of State for the Home Department
 
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Case No: CO/4634/2013

Neutral Citation Number: [2015] EWHC 879 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 29 April 2015

Before :

His Honour Judge Anthony Thornton QC

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Between :

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Ms Parosha Chandran and Ms Priya Solanki (instructed by Garth Coates, Solicitors) for the Claimants

Mr William Hansen (at the hearing on 16 October 2014)

Mr John McKendrick (from 17 October 2014 and at the hearing on 19 December 2014) (instructed by the Treasury Solicitor's Department who were from 1 April 2015 known as the Government Legal Department) appeared for the Defendant

Hearing dates: 16 October and 19 December 2014

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JudgmentHHJ Anthony Thornton QC:

  1. This judgment relates to complex judicial review claims that are brought by the first claimant Yasin Hussein Ahmed Said (``Yasin'') and his two sons, the second and third claimants Yusuf Yasin Hussein Said and Yakub Yasin Hussein Said (``Yusuf'') and (``Yakub'') against the Secretary of State for the Home Department (``SSHD'') There is terminological confusion in all immigration cases since all applications and decisions are made in the name of the SSHD and most claims and cases name the SSHD as the defendant. However, the correct defendant is the Home Office which is the department responsible for immigration and, until recently, all immigration business was in the hands of the UK Border Agency which was an autonomous section of the Home Office. In this judgment, all references to the body responsible for immigration are referred to as ``the SSHD'' by which is meant the SSHD in her personal capacity and/or the Home Office and/or the UKBA. The SSHD is referred to as such even if the document being quoted or referred to uses the description ``Home Office''. See further paragraph 225 below. .

  2. Yasin's claims arise out of his application for settlement and indefinite leave to remain (``ILR'') as the spouse of Laila Said (``Laila'') who was the mother of Yusuf and Yakub. This application was made on a SET (M) form appropriate under the Immigration Rules (``IRs'') for an application for settlement by a spouse where his wife was present and had already settled in the UK. He and Laila had signed the form on 2 June 2004 and Yasin had sent it to the SSHD on 12 August 2004 where it was received on 16 August 2004. It has always subsequently been treated as having been made and dated on and effective from 1 September 2004 Hereafter, both Yasin and Yusuf's separate applications are described as being ``dated 1 September 2004'' even though they had been sent to the SSHD on 12 August 2004 and received by it on 16 August 2004.. It was made on the basis that he was present in the United Kingdom (``UK''), that he had been living in the UK for four years nine months on the date that Laila and he had signed the application, that he was living with Laila and that Laila had previously been granted both British citizenship and the right to settle in the UK on 13 October 2003.

  3. Yakub's claims for settlement and ILR arise out of Yasin's application since it had included an application on his behalf for ILR as Yasin and Laila's dependent child. Yakub was then seventeen and his application was made on the basis that he was present in the UK, was living with his parents, had come to the UK with his mother and had been living here for four years nine months on the date that the application was signed by them.

  4. Yusuf's claims for settlement and ILR arise out of his separate application that was made on a SET(O) form appropriate for an application under or outside the IRs for settlement on some other basis than those specifically recognised by the IRs. He was twenty and had signed and sent his application to the SSHD on 12 August 2004 where it was received on 16 August 2004. His and Yasin's applications were made and received by the SSHD simultaneously and it has always been treated as having been made on and effective from 1 September 2004. It was made on the basis that he was present in the UK, that his mother was a British citizen who was present and had settled in the UK, that he had come to the UK with his family to settle here, that he had lived in the UK for four years eleven months on the date that he signed the application, was still living with his family, had no family elsewhere and was totally dependent on his parents See paragraphs 238 - 239, 241 - 251 & 362 - 363 below for an analysis of the difficult question as to whether these two applications are to be regarded as having being made within or outside the IRs. .

  5. Both applications were accepted as being valid by the SSHD and they were subsequently always treated as being both charged and linked. A charged application was one for which the appropriate payment had been both paid by the applicant and received by the SSHD. There was no definition of a linked application in the IRs but it is clear from the way that both applications were subsequently dealt with that they had been marked as being linked following a decision by the case worker who had initially processed them that they should always be considered together and that any decision in one of these three cases should always be taken at the same time as the corresponding decision in each of the other two cases.

  6. These two applications remained undecided for over ten years. Yasin and Yakub's application was decided in two separate decisions dated 9 October 2014 which were served two weeks later. Yasin was granted ILR and Yakub was initially granted one day's LTR but the SSHD subsequently acknowledged that this grant was a mistake and was in fact for thirty months discretionary leave to remain (``DLR'') outside the IRs. Yusuf's application was refused in a decision dated 13 November 2014 as part of a composite decision which also ordered his deportation and refused his human rights claim that it was disproportionate to deport him.

  7. This judicial review was filed in the Administrative Court on 18 April 2013 and as originally pleaded, was limited to a claim by each claimant for an order compelling the SSHD to make a decision in relation to his particular application which had by then been outstanding for nearly nine years. On 29 May 2013, the SSHD's acknowledgement of service and summary defence sought the dismissal of each claim since it had by then agreed to consider ``the claimant's (sic) application'' and, absent special circumstances, to make a decision in each case within six months. It was accepted by the SSHD at the hearing that that wording was mistaken and that it should in fact be referring to all three applications. Permission to apply for judicial review was granted by Ms Elizabeth Laing QC sitting as a deputy High Court judge on 23 July 2013 on the grounds that it was well arguable that the lengthy delay in deciding each application was unlawful and that the SSHD had not made an offer to pay the claimants' costs.

  8. The applications were not decided within the proposed six month period even though no special circumstances were identified by the SSHD. In the autumn of 2013, the substantive application for judicial review was fixed for a one-day hearing on 16 October 2014. No detailed grounds of defence were served and no disclosure was provided by the SSHD despite both being ordered by the court when permission had been granted. On 25 September 2014 and without prior warning, Yusuf was served with a notice of liability to deportation.

  9. None of the claimants had been served with their respective decisions by the date of the hearing

    although the SSHD's counsel announced in open court at the hearing that the decisions in Yasin and Yakub's cases had been made but had not yet been served. I adjourned the hearing to await the service of decisions in all three cases and to enable the claimants to serve draft amended grounds of claim to add claims for damages and, if necessary, to set aside the decisions once served and for the SSHD to serve draft amended grounds of defence in response.

  10. The SSHD served Yasin with its decision to grant him ILR and Yakub with its decision to grant him LTR two weeks after the hearing and Yusuf with its decision on 13 November 2004 to deport him and to refuse both his human rights claim and his application for ILR. Two of these decisions, to deport him and to refuse his human rights claim, were the subject of an in-time appeal to the First-tier Tribunal (``FtT'') whereas the third decision to refuse his ILR application was not since it carried no right of appeal. However, following the service of Yusuf's notice of appeal, Yusuf's legal team discovered that the relevant provisions of the Immigration Act 2014 (``IA 2014'') had come into force on 20 October 2014 and are applicable to Yusuf's appeal since the relevant decision being appealed post-dated the commencement of those provisions of the IA 2014. As a result, Yusuf is not able to challenge his deportation order in an appeal to the FtT so that his appeal is now confined to his challenge the decision on human rights grounds.

  11. The three claimants then served draft amended grounds of claim. Each claimant sought to add claims for damages and declarations arising from alleged breaches of their rights under the European Convention of Human Rights (``ECHR'') and the Human Rights Act 1997 (``HRA'') that had been caused by the SSHD's ten years' unlawful delay in providing the decisions and by its repeated maladministration that had caused that delay. Yakub and Yusuf also sought orders quashing the SSHD's decisions in their cases dated, respectively, 9 October 2014 and 13 November 2014 and declarations as to the principles that should be applied in the redetermination of their original applications dated 1 September...

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