“The Appellant can hardly be blamed, in the circumstances, for not ‘chasing up’ the Respondent who had specifically asked her not to make enquiries.”
“13. Throughout all this time, it follows that the Appellant’s private and/or family life in the United Kingdom was becoming more and more established and, as a married woman, she can hardly be criticised for having one child (although not until 2005) or becoming pregnant with another (which must have been conceived long before the Respondent’s refusal of her application). 14. Both representatives made submissions as to the effect of delay in a case such as this. In particular, Miss Mabon drew my attention to MM[2005] UKIAT 00163 and Mr Middleton drew my attention to the recent decision of Collins J in Ajoh[2006] EWHC 1489 (Admin) , decided on16 May 2005 ”. 15. In point of law, Ajoh is, of course, binding upon me and I cannot find any significant difference between the circumstances of that case and the circumstances of this case which would make this case distinguishable on the facts. Indeed, in Ajoh the delay was one of only two years, as opposed to almost three in this case. The background circumstances, although not, of course, identical, are strikingly similar. 16. Looking at the matter as a whole, therefore, for the reasons I have given, I find that the Appellant is entitled to succeed in this appeal and I will allow it accordingly.”
“8. The additional element in both cases, not present, so far as we know, in Akaeke, was the Home Office letter discouraging further inquiries. However in Ajoh the letter set out no period after which a final decision might be expected, whereas the present case it gave one of 13 weeks. Following that period, the appellant waited for two years, as we have noted, before making any inquiries at all; and this was the substantial delay in the present case. Clearly something had gone wrong at the Home Office; but the appellant, who had been given a period of 13 weeks, must have realised that. Could the delay of two years, during which she did nothing at all to get the decision she must have been expecting, coupled with the six months it took her representatives to get it when they did try, reasonably have been described by the judge as one of those ‘extreme cases, of national disgrace or of the system having broken down’, represented by Akaeke?” “9. In our view it could not; and it must follow that, when the judge compared the facts of this case with those of Ajoh, and based his decision on that -- even if by implication he must have found the Home Office delay ‘inordinateandinexcusable’ as Collins J described it in that case -- rather than on the principles to be found in decisions of the Court of Appeal such as Akaeke and Strbać, the error of law he made was a material one.”
“…only if it [that is, the appropriate court] thinks that the Tribunal may have made an error of law”
“(a) the Tribunal carrying out the reconsideration must first decide whether the original Tribunal made a material error of law; and (b) if it decides that the original Tribunal did not make a material error of law, the Tribunal must order that the original determination of the appeal shall stand.”
“It is of the nature of such judgments that different tribunals, without illegality or irrationality, may reach different conclusions on the same case (as is indeed illustrated by Mr Fountain’s decision after the second hearing). The mere fact that one tribunal has reached what may seem an unusually generous view of the facts of a particular case does not mean that it has made an error of law so as to justify an appeal under the old system or an order for reconsideration under the new.”
“iii). Where delay is relied on as a reason for not applying immigration policy, a distinction must be made between persons who have some potential right on immigration policy to be in this country (for instance, under marriage policy, as in Shala and Akaeke); and persons who have no such right. iv) In the former case, where it is sought to apply burdensome procedural rules to the consideration of the applicant’s case, it may be inequitable in extreme cases, of national disgrace or of the system having broken down [Akaeke], to enforce those procedural rules [Shala; Akaeke] v) Where the applicant has no potential rights under specifically immigration law, and therefore has to rely on his rights under article 8(1), delay in dealing with a previous claim for asylum will be a relevant factor under Article 8(2), but it must have very substantial effects if it is to influence the outcome [Strbać at §25.] viii) Arguments based on the breakdown of immigration control or of failure to apply the system properly are likely only to be of relevance if the system in question is that which the Secretary of State seeks to rely on in the present proceedings: for instance, where a procedural rule of the system is sought to be enforced against the applicant [Akaeke]. The same arguments do not follow where appeal is made in article 8 proceedings to earlier failures in operating the asylum system. ix) Decisions on proportionality made by tribunals should not, in the absence of errors of principle, be interfered with by an appellate court [Akaeke].”
“…where the operation of the system had broken down to the extent shown in this case, the tribunal was entitled to take the view that confidence was unlikely to be materially improved by maintenance of a rigid policy of temporary expulsions.”
“Once it is accepted that unreasonable delay on the part of the Secretary of State is capable of being a relevant factor, then the weight to be given to it in the particular case was a matter for the Tribunal, subject only to the constraints imposed by judicial review principles.” (Emphasis added).