Court of Appeal considers delay in Home Office decision-making
In an earlier blog post we examined how quickly an individual can expect an application to be decided and current visa processing times.
Home Office Service Standards
The Home Office still has in place customer service standards for processing visa applications submitted after 1 January 2014. The standards have largely remained the same, as follows:
Straight forward applications from outside the UK:
- Non-settlement visa applications: 90% to be decided within 3 weeks;
- Non-settlement visa applications: 98% to be decided within 6 weeks;
- Non-settlement visa applications: 100% to be decided within 12 weeks;
- Settlement applications: 95% to be decided within 12 weeks; and
- Settlement applications: 100% to be decided within 24 weeks.
Those applying to remain on a temporary basis including as spouses, workers, entrepreneurs, students and organisations seeking to sponsor a worker should be determined within an 8 week period. If UKVI cannot meet the service standards a letter should be written to the applicant within the normal processing time to explain what will happen. For some cases UKVI will usually cite that the application raises issues relating to the European Convention on Human Rights and therefore conclude that they are complex in nature.
Recent media articles have highlighted the delays people are currently experiencing in the determination of their applications and visa processing times from within the UK. The impact of delay on an individual and their family varies from case to case and depends on individual circumstances. However, many face restrictions in terms of working, renting, accessing medical treatment and find themselves separated from family members, as they are not permitted to travel.
The BBC News recently ran a series of articles entitled Home Office visa delays ‘inhumane’, examining the financial and emotional pressure many individuals found themselves under resulting from their personal circumstances and delays in making decisions.
Legal Developments
The issue of delay was recently addressed in the case of Secretary of State for the Home Department v Said [2018] EWCA Civ 627. This was an appeal by the Secretary of State for the Home Department from the order of HH Judge Anthony Thornton QC of 29 April 2015. A declaration had been made that delays by the SSHD in dealing with applications by the three Respondents for settlement in the United Kingdom, in the period between 20 December 2004 and 9 October/13 November 2014 were unlawful.
All three Respondents had made applications for settlement and all understandably argued there had been substantial and unacceptable delay. Yasin and Laila were husband and wife, Yusuf and Yakub their two sons. All were all born in Kenya. The mother and sons arrived in 1999 and initially claimed asylum, they were followed by Yasin who then also sought asylum. As a result the parents had ‘principal’ files and the sons had what are termed ‘sub files’. In passing judgment Court noted that: “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”.
The parents appeals were dismissed and further applications were unsuccessful. Laila became a British citizen as a result of an amendment to the British Nationality Act in 2003 and in 2004 Yasin, and his sons made applications for indefinite leave to remain in the UK on this basis. On 2 March 2003, Yusuf became involved in an incident and charges followed. Interestingly and raising another legal point no recommendation for deportation or an indication of an intention to deport Yusuf was made, until at least ten years after the sentence had been passed and well after the proceedings had been begun. It was never explained why that conviction should have impacted upon the other two.
No decisions were in fact in respect of settlement until 2014, the matters were erroneously considered under the legacy scheme. Sadly, Yasin died, on 12 January 2015, in the intervening period. The Judge made an order that his claim was continued in the name of his widow, Laila.
In summary the Court of Appeal ruled that the delays went beyond maladministration and were a breach of Human Rights and that damages could therefore follow.
The Court followed Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406 in concluding per paragraph 134:
(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…”;
Despite the Secretary of State’s position, in conclusion the Court of Appeal found a complaints procedure was not sufficient to deal with substantial and long delay: “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,” paragraph 144.
At paragraph 147 of the judgment the Court of Appeal found 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”. This continues at paragraph 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”.
It is important that individuals can seek the protection of the courts when the system fails them, that there is a way to challenge delay which for some can have such a devastating and sometimes irreversible impact on the lives of individuals.
Contact our Immigration Barristers
If you are experiencing delays in the determination of your application and if you would like advice regarding your immigration matter, contact our immigration barristers on 0203 617 9173 or complete our enquiry form.
