FH & Ors, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

These ten cases were heard together as they all raise a similar issue concerning alleged failures by the Defendant to decide upon applications to remain in the country within a reasonable time. The claimants are described by the Home Office as incomplete asylum cases, meaning that an initial asylum decision was made and rejected, with unsuccessful appeals, but removal had not occurred. Subsequent applications or fresh claims were made based on further evidence or changed circumstances. Some claimants, such as FH, had discretionary leave granted on humanitarian grounds and sought extensions, while others, like H, had outstanding human rights claims that had not yet been determined. The applications in question have been outstanding for periods often exceeding two years, with some over three years. The Defendant agreed to consider certain exceptional cases, but generally, the delays in deciding these applications have persisted. The court was asked to declare these delays unlawful and order immediate consideration of the applications.

Legal Issues Presented

1. Whether the delay by the Defendant in deciding the outstanding applications to remain in the country is unlawful due to being unreasonable or irrational.
2. Whether the system and resources applied by the Defendant to address the backlog of incomplete asylum claims are fair, reasonable, and lawful.
3. Whether exceptional or compassionate circumstances justify immediate consideration of specific delayed applications.
4. The extent to which lack of resources can be a defence to delay in administrative decision-making concerning asylum applications.

Arguments of the Parties

Claimants' Arguments

• The claimants argue there is an implicit obligation on the Defendant to decide applications within a reasonable time, and the excessive delays are unlawful.
• They rely on precedent establishing that applications must be dealt with speedily and that lack of resources is not a valid excuse for delay.
• The claimants submit that the Defendant’s system for dealing with the backlog is unfair and unlawful, causing detriment to applicants.
• They emphasize that delays impede the exercise of Convention rights, including refugee status and human rights claims.

Defendant's Arguments

• The Defendant acknowledges delays but submits that the obligation is to decide within a reasonable time, which is a flexible concept depending on resources and circumstances.
• The Defendant contends that the delays are the result of a rational system prioritizing initial claims and limited resources, which cannot be deemed irrational or unlawful.
• It is argued that some delay is inevitable given the volume of claims, and that the Defendant has implemented measures to address the backlog, including prioritizing exceptional cases.
• The Defendant denies that the system is unfair or that delays have caused unlawful detriment in these cases, except possibly for one claimant whose human rights claim remains outstanding.

Table of Precedents Cited

Court's Reasoning and Analysis

The court recognized that delays exceeding two to three years are excessive on their face but emphasized that the obligation to decide within a reasonable time is a flexible concept depending on the circumstances, including available resources and the nature of the claims. The court distinguished the requirement for speedy decisions in detention cases (Article 5(4) ECHR) from asylum application delays, noting that the latter do not require the same urgency.

The court accepted that the Defendant must give effect to Convention rights and that delays undermining the exercise of such rights could be unlawful. However, it held that delays are only unlawful if they are irrational or an abuse of power, failing the Wednesbury test. The court must consider whether the Defendant’s system for allocating resources and prioritizing cases is rational, fair, and consistently applied.

Evidence showed that the Defendant prioritized initial asylum claims to meet Public Service Agreement targets, which led to backlog cases being delayed. The Court of Appeal in the referenced case (Home Department v S) found such deliberate postponement unlawful due to unfairness and irrationality. However, the court here found that the current system, while undesirable and causing delays, is not unlawful, provided it is applied fairly and consistently and includes mechanisms to consider exceptional or compassionate cases promptly.

The court noted that many fresh claims are unmeritorious attempts to delay removal, justifying prioritization of initial claims. It accepted that some delay is inevitable due to volume and resource constraints. The court expressed particular concern about one claimant (H) whose human rights claim has been outstanding for approximately five years and ordered immediate consideration of his applications.

Finally, the court stressed the importance of minimizing prejudice to claimants during delays, recommending improved communication, continued support, and flexibility in travel and work permissions.

Holding and Implications

The court DISMISSED the claims based on delay as unlawful, except in the case of the claimant with the outstanding human rights claim (H), whose application must be considered forthwith including his marriage approval and human rights claims.

The decision confirms that while excessive delay is undesirable and may cause detriment, it will only be deemed unlawful if it is irrational or an abuse of power. The court recognizes the challenges faced by the Defendant in managing resources and emphasizes the necessity of a rational, fair, and consistent system rather than imposing strict time limits. No new precedent was established beyond affirming existing principles concerning reasonableness, fairness, and resource allocation in administrative decision-making on asylum applications.