Secretary of State for the Home Department v Said & Ors, Court of Appeal - Civil Division, March 27, 2018, [2018] EWCA Civ 627

Resolution Date:March 27, 2018
Issuing Organization:Civil Division
Actores:Secretary of State for the Home Department v Said & Ors

Neutral Citation Number: [2018] EWCA Civ 627

Case No: C4/2015/1688




His Honour Judge Anthony Thornton QC


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 27/03/2018





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Julie Anderson (instructed by The Government Legal Department) for the Appellant

Parosha Chandran and Priya Solanki (instructed by Wilsons Solicitors LLP) for the Respondents

Hearing date: 16 January 2018

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Lord Justice McCombe:

(A) Introduction

  1. This is an appeal by the Secretary of State for the Home Department (``SSHD'') from the order of HH Judge Anthony Thornton QC (sitting as a Judge of the High Court) of 29 April 2015 (sealed on 15 May 2015) whereby he declared that delays by the SSHD in dealing with applications by the three respondents (respectively ``Yasin'', ``Yusuf'' and ``Yakub''), for settlement in the United Kingdom, in the period between 20 December 2004 and 9 October/13 November 2014 were unlawful. The judge referred to a further trial of all issues of damages, causation and quantification in respect of such delays.

  2. Before proceeding further, it will be seen that I have adopted above, and I will adopt in later parts of this judgment, shortened versions of all the respondents' names and of one other family member, for convenience. No disrespect is thereby intended, as I hope the respondents will accept.

  3. Yasin died, on 12 January 2015, in the period between the hearing before the judge on 19 December 2014 and the making of his order on 29 April 2015. As a consequence of the death, the judge made an order, under CPR 19.8(1)(b) for his claim to be continued in the name of his widow, Laila Said (``Laila'').

  4. In addition to making the primary orders which I have indicated, the judge made certain procedural orders in the course of the proceedings, as to amendment to the grounds for judicial review, for the hearing of the application for permission to apply for review and the substantive review application on a ``rolled up'' basis and, in his final judgment, granting permission to apply for judicial review, to which I will return below.

  5. The SSHD appeals against the judge's order, with permission granted by Hallett LJ on 16 March 2016, on three broad grounds of appeal, contained in a document entitled ``Interim Grounds of Appeal'' (dated 21 May 2015) which has never been subsequently amended. Ground 1 is that the judge erred in law in making his delay declaration. Ground 2 is that the judge should have declined to grant permission to bring a judicial review claim and (a fortiori) to find that the claim succeeded in circumstances in which the claimants had failed to exhaust the SSHD's internal complaints procedure before bringing the claim. Ground 3 alleges a materially unfair trial process adopted by the judge, relying on a number of ``sub-grounds of appeal'', including the refusal of an adjournment of the proceedings on 19 December 2014.

  6. On the hearing of the appeal, the SSHD was represented by Ms Julie Anderson (who did not appear below) and the respondents were represented by Ms Parosha Chandran and Ms Priya Solanki.

    (B) Outline Background Facts

  7. As will have been gathered from what I have said already, the claims in these proceedings arise out of what the respondents contended were the unreasonable delays on the part of the SSHD in dealing with applications for settlement by all three of them. The applications were made on 1 September 2004 and were not decided upon by the SSHD until October/November 2014. On those dates, indefinite leave to remain was granted to Yasin, leave to remain for 30 months was granted to Yakub and it was decided to deport Yusuf.

  8. The judge delivered a very lengthy judgment of 105 pages running to 492 paragraphs. In it, he sets out in very great detail the entire history of the dealings by various emanations of the Home Department with the respondents' applications and with ancillary matters. The judge resolved the claim before him by reference to 17 separate issues. (There is a complaint by the SSHD, to which I will return, arising out of the judge having delivered one version of his draft judgment on 29 April 2015 and a second version on 14 May 2015. For the purposes of the hearing and preparation of this judgment, I have worked principally from the second version, as it was agreed at the hearing that we should).

  9. At the outset of the hearing of the appeal, the court enquired of Ms Anderson whether she took issue with the bare factual statement by the judge of the events that occurred, in dealing with the applications, over the 10 year period. Ms Anderson indicated that she did not agree with everything said by the judge in this regard. However, the discrepancies (such as they might have been) were not individually identified, either in the Grounds of Appeal, or in argument nor were we taken through the documentary trail upon which the judge's summary was based. I will, therefore, take the outline facts for present purposes from the judgment, unless it is clear that an important issue arises. I do not intend to descend to anything like the detail that was deployed by the judge, particularly as the grounds of appeal are advanced on three broad and succinct bases only. I will concentrate on those features of the history, as described by the judge, that seem to me to have a bearing on the appeal issues. Nonetheless, my factual outline cannot be as short as I would have wished.

  10. Yasin and Laila were husband and wife. Yusuf and Yakub are their two sons, born respectively on 12 December 1982 and 17 March 1987. Yasin was born on 26 May 1953 in Kenya and became a Kenyan citizen on Kenya's independence. He had lived in Kenya all his life until he arrived in England on 18 September 1999. Laila was born on 15 March 1956 and had also lived her life in Kenya until she came independently to the United Kingdom with her two sons, a little earlier than her husband, on 24 August 1999. It seems that in this early period there had been an estrangement between Laila and Yasin but that this was later resolved and the couple remained united for the bulk of the relevant period.

  11. Laila was born a citizen of the United Kingdom and Colonies by virtue of both her parents having had that status. She was not entitled to Kenyan citizenship upon independence. She became a British Overseas Citizen on the coming into force of the British Nationality Act 1982. By that change of status she lost the right of abode in the United Kingdom and that remained the position until the passage into law of s.4B of the 1982 Act on 30 April 2003. After that section came into force, she became a British Citizen on 13 October 2003 in circumstances to which I return.

  12. The judge set out in paragraphs 24 to 27 of his judgment the family's situation in Kenya and the background to their decision to leave for this country in 1999. Laila had siblings based here and she and her sons arrived here initially on 6-month visitors' visas. On 6 October 1999, having taken advice and without previously having contemplated doing so, Laila applied for asylum for herself and her sons, based upon racial discrimination, persecution and harassment experienced by them all in Kenya. Given the continuing validity of their initial visas, the applications led to the extension of their leave to remain, until the applications and any appeals had been dealt with. Yasin made his own asylum claim on 3 December 1999.

  13. The judge explained how (at the material times) the Home Office's files were organised. It seems that each of the parents had a ``principal'' file. The two sons' files became ``sub-files'' of Laila's principal file. 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.

  14. Both parents' asylum claims were refused and appeals in each case were unsuccessful: Laila's appeal was dismissed on 19 September 2001 and that of Yasin on 22 October 2002. At that stage, presumably, their leave to remain here would have lapsed.

  15. In paragraphs 34 and following of the judgment, the judge deals with the unsuccessful appeals and outlines the family's circumstances in this period. Yasin was working as mechanic in Reading and Laila worked as an auxiliary nurse. The judge records that Yusuf had a problematic time at school and that on 6 June 2001 and on 18 December 2001 he was convicted of driving without a licence and while uninsured and, on the latter occasion he was convicted of similar offences and of driving with excess alcohol. He entered into a close relationship with a young woman and they had a child born on 27 April 2003.

  16. Further applications for leave to remain in the UK were submitted by Laila (for herself and her sons) and by Yasin, on 22 January 2002 and 3 December 2002 respectively. Owing to difficulties in getting employment, Yasin opened his own car repair business as a sole trader.

  17. On 2 March 2003, Yusuf became involved in violent incident at a petrol station in Reading and was charged with grievous bodily harm ``GBH'', affray and two counts of common assault. In later documents it is said that the GBH was one of wounding with intent to cause grievous bodily harm (section 18 of the Offences against the Person Act 1861). In due course, so it is said, Yusuf pleaded guilty to these offences and on 20 August 2004 he was sentenced to 18 months imprisonment. No recommendation for deportation was made and no hint of an intention to deport Yusuf...

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