S, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant, a citizen of Afghanistan, entered the United Kingdom in September 1999 and applied for asylum simultaneously with a relative. While the relative's application was refused but subsequently granted Exceptional Leave to Remain (ELR) and later Indefinite Leave to Remain (ILR), the Appellant's asylum claim was delayed without substantive response for over two years. During this period, the Home Office implemented a policy prioritising new asylum applications lodged after 1 January 2001, effectively placing older applications, including the Appellant's, on indefinite hold to meet performance targets. The Appellant was eventually interviewed in March 2004, and his claim was refused shortly thereafter. Subsequent appeals and applications for discretionary leave to remain were refused, with the Home Office citing the similarity to previous claims and questioning the validity of the Appellant's asserted relationship with a British citizen. The Appellant initiated judicial review proceedings challenging the refusals.

Legal Issues Presented

1. Whether the Secretary of State's decision to defer consideration of the Appellant's asylum application constituted an unlawful abuse of power.
2. The legal effect and scope of the court's earlier judgment in R (Rashid) v Secretary of State on similar issues of administrative delay and policy changes.
3. The relevance and impact of delay and policy changes on the Appellant's rights under Article 8 of the European Convention on Human Rights.
4. The lawfulness of the Home Office's refusal to grant discretionary leave to remain, including the certification under section 96(1) of the Nationality, Immigration and Asylum Act 2002.
5. The implications of practical difficulties faced by Afghan nationals in obtaining entry clearance from Afghanistan.

Arguments of the Parties

Appellant's Arguments

• The delay in processing the asylum application was not mere administrative delay but stemmed from a deliberate policy decision to postpone older applications solely to meet performance targets, constituting an unlawful fettering of discretion and abuse of power.
• The Appellant was entitled to relief similar to that granted in Rashid, specifically a declaration entitling him to Indefinite Leave to Remain (ILR) due to the unfairness caused by the delay.
• The Home Office failed to consider the practical impossibility of applying for entry clearance from Afghanistan, rendering the refusal of discretionary leave unlawful.
• The section 96(1) certificate denying the right of appeal was wrongly issued, as the Appellant's relationship with a British citizen was not properly investigated and there were valid reasons for its late disclosure.

Respondent's Arguments

• The delay was an unfortunate but necessary administrative response to a crisis of volume and was not so unfair as to amount to abuse of power.
• The Home Office accepted that the original failure to apply the correct policy was an error of law but maintained that subsequent decisions were correctly based on the prevailing policy and circumstances.
• The Appellant had no prima facie right under immigration law to remain, and delay alone did not improve his position under Article 8.
• The difficulties in obtaining entry clearance from Afghanistan were not pleaded and were not specific to the Appellant, thus irrelevant to the present proceedings.
• The reasons for the late disclosure of the relationship were not "satisfactory" under the statutory test, justifying the refusal of appeal rights.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully considered the effect of administrative delay caused by the Home Office's policy to prioritise new asylum applications to meet performance targets, which resulted in the indefinite postponement of older claims, including that of the Appellant. The court found this policy to be an unlawful fettering of discretion and an abuse of power because it was arbitrary and lacked principled justification, ignoring fairness and consistency.

In applying the precedent set by Rashid, the court distinguished that case on the basis that there, a legally defective decision was made while the beneficial policy was in force, whereas here no substantive decision had been made due to delay. Nonetheless, the court held that the deliberate postponement, amounting to conspicuous unfairness, justified judicial intervention.

The court emphasised that the remedy does not lie in the court itself granting ILR but in requiring the Secretary of State to reconsider the application lawfully, taking into account the past unlawful delay and its consequences. This approach respects the principle that decisions must be made based on present circumstances but allows the Secretary of State to use discretion to remedy past unfairness.

Regarding Article 8 claims, the court reiterated established principles that delay alone does not strengthen such claims unless there are exceptional circumstances. The court acknowledged practical difficulties faced by Afghan nationals in obtaining entry clearance from Afghanistan but declined to decide on this point due to lack of pleaded evidence and its general nature.

Finally, the court found the section 96(1) certificate to be wrongly issued because the Appellant’s relationship with a British citizen had not been properly investigated, and valid reasons were presented for its late disclosure, warranting a right of appeal on reconsideration.

Holding and Implications

The court UPHELD the appeal and quashed the decisions refusing discretionary leave to remain and the section 96(1) certificate. The case was remitted to the Secretary of State for reconsideration in light of the judgment, with the expectation that the Appellant will be granted Indefinite Leave to Remain (ILR).

The decision underscores that administrative policies which arbitrarily delay asylum applications to meet performance targets, without principled consideration of individual circumstances, constitute unlawful fettering of discretion and abuse of power. It clarifies that courts will intervene where such conspicuous unfairness occurs, requiring public authorities to exercise discretion fairly and consistently.

No new precedent beyond the interpretation and application of existing authorities such as Rashid was established. The ruling directly affects the parties by mandating reconsideration and likely granting of ILR but does not alter the broader legal framework for asylum or immigration law.