The Court of Appeal has held that UT Judge Frances had not erred in refusing a family permission to seek judicial review of the SSHD’s almost three-year delay in making a decision in respect of their applications for leave to remain in UK. The SSHD’s deferral of a decision, pending the outcome of a National Crime Agency (“NCA”) investigation and charging decision in respect of allegations of money laundering relating to the father, was not unlawful, irrational or unreasonable. Mr Zhou, the first appellant, and Mrs Zhou were husband and wife and Ms Zhou was their daughter. They were Chinese nationals. Mr Zhou arrived in the UK from China in 2005 with leave to enter until 2006. He was permitted to remain in the UK under a sequence of subsequent permissions until April 2018. Mrs Zhou joined him in 2010. Ms Zhou was born in China but had lived in the UK for most of her life. In 2018, Mr Zhou was refused indefinite leave to remain as a Tier 1 General (Migrant) Worker and his application for administrative review was also refused. He applied for judicial review of the decision, but this application was withdrawn by him. In March 2021, he was arrested with others on suspicion of money laundering. He denied any wrongdoing and was released pending further investigation and a charging decision. In June 2021, Mr Zhou applied for leave to remain as a Tier 2 Skilled Worker and was sponsored by a financial services company. His family also applied for leave to remain as his dependants.
They were overstayers by then and on immigration bail. In July, the Home Office stated that no decision would be taken on the new applications until the “outstanding criminal prosecution” had concluded. It was accepted that reliance on that statement was wrong as no charging decision had been made. In February 2022, a pre-application letter of claim was served on the SSHD who apologised for the ongoing delay and stated that a decision was expected by April 2022. In April 2022, judicial review proceedings were issued and sought to challenge the July 2021 and February 2022 decisions. The NCA informed the SSHD that a charging decision was expected in August 2022 and in June 2022, the Zhou family’s permission application was refused and in July 2022, a renewed application was refused following an oral permission hearing. The UT, following the decision in R (on the application of X and others) v SSHD [2021] EWCA Civ 1480, held that the SSHD had an implied power under the Immigration Act 1971 to defer, or delay, making a decision on an application for leave to remain, and that the delay was not arguably unlawful or irrational. The family were granted permission to appeal against that decision. However, in August 2023, they made a further application for leave to remain, based on their rights under article 8 of the ECHR, expressed as an application to vary their outstanding application. Mrs Zhou was the lead applicant, with Mr Zhou and Ms Zhou as her dependants. They unsuccessfully argued that the delay in processing their application was unjustified given the “hostile environment” they were exposed to which includes severe restrictions on the right to work, rent accommodation, access to the NHS, and/or the ability to have a bank account.
Hostile environment
The Zhous mounted an argument on the basis of on Balajigari v SSHD [2019] EWCA Civ 673 that UT Judge Frances failed to take proper account, when rejecting their application, of the fact that they are currently subject to the so-called “hostile environment”. They also contended that she was wrong to reject their article 8 rights. They accepted that although not specifically pleaded, the article 8 rights fell to be considered “as a corollary” of their arguments about the “hostile environment”. They further asserted that the UT had failed to consider the absence of any reference by the SSHD in the decision to the best interests of the child (relying on section 55 of the Borders, Citizenship and Immigration Act 2009). They furthermore argued that the UT was wrong to reject as unarguable their case that the SSHD’s long delay in making the substantive decision on the present facts was unlawful (in the sense that it was in breach of an implied statutory obligation to make a decision within a reasonable time) or unreasonable (in the Wednesbury sense).
The Court of Appeal
King and Whipple LJJ and Cobb J, who delivered the judgment, dismissed the appeal.
First of all, as to whether the appeal was academic, the SSHD relied on paragraph 34BB of the Immigration Rules and submitted that the August 2023 application had effectively rendered the appeal academic. The new application had materially varied the June 2021 application and the SSHD would be required to make his substantive decision on the basis of the “family route” rather than the “skilled worker route”. The appeal was thus rendered academic as the parties agreed on that issue. But, as the point had been raised as part of the appeal hearing, the arguments on the merits would still be addressed. Whilst the court was persuaded by the SSHD’s submission that the August 2023 application has rendered the appeal academic, Cobb J explained as follows:
33. Had this preliminary point been taken discretely, and had it required a separate and immediate determination, it follows that this court may well not have gone on (had we followed the direction of Lord Slynn in his speech in R v Secretary of State for the Home Office ex parte Salem [1991] 1AC 450 (HL) at pp.456-457) to hear, let alone determine, the merits of the arguments on the appeal. However, the point was taken within, and as part of, the appeal hearing itself, and I therefore address the arguments on the merits which were ably presented on both sides.
As to the lawfulness and reasonableness of delay/deferral, UT Judge Frances had been right to refuse permission to pursue judicial review on the basis of R (on the application of X and others) v SSHD [2021] EWCA Civ 1480, despite the different factual context, where Lewis LJ had explained that the SSHD has power to decide when and how immigration applications are to be dealt with including a power in appropriate circumstances to defer taking a decision on an application. Moreover, a power to defer a decision pending the outcome of a criminal investigation is, therefore, incidental and ancillary to the SSHD’s functions under the 1971 Act. Cobb J held as follows:
34. In my judgment, UT Judge Frances was not just entitled, she was indeed right, to found her refusal to give permission to the Appellants to pursue judicial review on the basis of this court’s judgment in R (X) v SSHD. In almost every sense, the judgments in that case answered the Appellants’ arguments notwithstanding the somewhat different factual context. Lewis LJ recognised and articulated the Respondent’s power to act in ways expressly authorised by the Immigration Act 1971, and/or to act in ways which are ancillary or incidental to the exercise of the functions conferred by the Act.
Insofar as the appellants based any argument on Andrew LJ’s judgment in R (X) v SSHD, Cobb J was not convinced that her judgment bore out the interpretation claimed.
Overall, as Lewis LJ (with whom Moylan LJ agreed) stated in R (X) the real question is whether on the facts of a specific case: “the exercise of a power to defer taking a decision on an application (whether pending the outcome of a criminal investigation or some other reason) is a lawful exercise of that power.” Cobb J accordingly held:
36. I was unpersuaded by Mr Biggs’ argument that there is any material difference on the facts of this case between an implied statutory duty on the Respondent to make a decision in a reasonable time or a duty to act reasonably in a Wednesbury sense.
37. What is lawful will be ‘fact-sensitive’, and what is a ‘reasonable time’ will inevitably involve a degree of elasticity or ‘flexibility’. On the facts of this case, and given the apparent seriousness of the matters in respect of which the First Appellant has been arrested and questioned, the UT Judge was entitled in my judgment to the view that the Respondent’s decision to defer was lawful.
38. In my judgment, at the time of the UT Judge’s decision, and on the facts of this particular case, the delay had not – as she rightly found – become either ‘unlawful or irrational’ or unreasonable. It is notable that in the case of R (X) v SSHD, there was an ongoing delay in the decision-making (as a result of the Respondent awaiting a decision of the CPS) which stood at 4½ years at the time of the appeal.
The Court of Appeal followed R (S) v SSHD [2007] EWCA Civ 546 on the interpretation of ‘fact-sensitive’, ‘reasonable time’ and elasticity or ‘flexibility’ where Carnwath LJ held at para 51 that delay may work in different ways for different groups—advantageous for some, disadvantageous for others. Undoubtedly it is implicit in statute that applications should be dealt with within “a reasonable time”. It is a flexible concept, allowing scope for variation depending not only on the volume of applications and available resources to deal with them, but also on differences in the circumstances and needs of different groups of asylum seekers. But in resolving such competing demands fairness and consistency are also vital considerations.
Cobb J’s attention was drawn to the judgment in R (MA) v SSHD UT(IAC) (November 2023) (JR-2022-LON-001664: unreported) which was a case similar in material respects to the instant case, in which an applicant challenged the ongoing delay in deciding an application for leave to remain against the background of a criminal investigation into money laundering involving the applicant’s husband. The UT acknowledged that the delay of over three years was significant, and no doubt frustrating for the applicant, it concluded that the SSHD’s decision to await the outcome of any charging decision was not unlawful.
Conscious that a charging decision is still awaited in the present case, nearly three years after Mr Zhou’s arrest and this was no doubt a particular frustration to the appellants and also a frustration to the SSHD, Cobb J nevertheless held:
39. In my judgment the UT Judge cannot be criticised for relying in July 2022 on information provided to her by the NCA that the case file had recently been sent to the Senior Crown Prosecutor for a decision as to charge. She was entitled to expect, on information provided to her, that a charging decision would be made later in the summer, albeit “dependent upon further consultations with the CPS and lawyers”.
40. The UT Judge rightly reflected in her decision that the June 2021 application was made out of time; she determined that any prejudice or detriment suffered by the Second and Third Appellants as a result of being subjected to the ‘hostile environment’ was not caused by the Respondent’s delay in deciding on their application for leave to remain. It is right to point out that the Appellants had been overstayers and subject to that ‘hostile environment’ for well over a year by the time they made their June 2021 application. They were subject to notices of liability to removal. Having withdrawn their challenge to the refusal of their previous application for leave to remain, they then chose to remain in the United Kingdom unlawfully, and to endure the so-called ‘hostile environment’.
They conceded that the article 8 point was essentially a corollary of the circumstances in which they had lived for some time. The fact that the situation had continued for much longer than they expected did not entitle them to assert any interference with their article 8 rights as a consequence of the SSHD’s decision-making. And although not specifically referred to by the UT, sections 117A, 117B(4) and 117B(5) of the Nationality, Immigration and Asylum Act 2002, Part 5A, relating to article 8 and public interest considerations, were applicable. While the UT Judge’s conclusion that article 8 was “not engaged” was vulnerable to challenge, had those matters been considered by the UT the same conclusion would have been arrived at regarding the lawful and rational decision-making by the SSHD. The section 55 point also failed.
Comment
The “hostile environment” policy of the UK led to the catastrophe of Windrush which is a stain on the Conservative government which so proudly promoted racism and intolerance. Subsequently, “hostile environment” became the “compliant environment”. The court observed that the Zhou family opted to remain in the UK unlawfully and chose to endure the hostile environment.
In the present case, there was no escape from the conclusion that UT Judge Frances was not just entitled, she was quite right, to refuse permission to pursue judicial review on the basis of the judgment in R (X) v SSHD. The delay of almost three years was significant, and no doubt frustrating for the applicant, but the SSHD’s decision to await the outcome of any charging decision was not unlawful or unreasonable in the Wednesbury sense.
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