In the High Court of Justice- Queen’s Bench Division- Administrative Court
This case challenges the 3 year delay on the part of the defendant in deciding the claimant's application for reconsideration of the defendant's refusal of leave to remain under Article 8 ECHR having regard in particular to the impact on the claimant's ability to secure sole care of his son, a British citizen. Permission was granted on the papers on the application for judicial review by Michael Fordham QC, sitting as a deputy High Court judge on 11 July 2013. Subsequently on 27 May 2014 the defendant made a decision in this case so a mandatory order is no longer sought. However the case as advanced at the oral hearing challenges the lawfulness of the delay from June 2011 until a decision was issued and the claimant seeks both a declaration that the defendant's delay in deciding the claimant's application for leave to remain is unlawful, including contrary to article 8 ECHR, and an award of damages for such article 8 violation.
It was concluded that;
- There is a duty on the defendant under section 55 of the Borders, Citizenship and Immigration Act 2009 to make arrangements to deal with applications which concern children in the UK in a way which safeguards and promotes the welfare of children and this duty is not confined to child applicants.
- The policy "Every Child Matters" does not as a matter of construction extend to applications from adult applicants with (non-applicant) children in the UK. There was therefore no breach of policy in this case but there was a failure to make arrangements pursuant to the duty in section 55.
- The delay in dealing with the application for reconsideration did not amount to an unreasonable delay at common law as the claimant failed to establish on the evidence that he suffered a particular detriment which the Home Office has failed to alleviate.
- There was no breach of the claimant's article 8 rights as a result of the delay on the basis that I have found that the claimant has not established that the defendant's delay caused him substantial prejudice and accordingly there can be no entitlement to damages under section 8 of the Human Rights Act 1998.