Shah, R (On the Application Of) v Secretary of State for the Home Department [2015] EWCA Civ 1114

Date Date: Case No C4/2014/2659[2015] EWCA Civ 1114
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MS CLARE MOULDER)
Venue Royal Courts of JusticeDate Tuesday, 6 October 2015
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE LAWS
THE QUEEN ON THE APPLICATION OF SYED SHAH
Applicant
-v-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr A Vaughan (instructed by Duncan Lewis) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
J U D G M E N T
Between
Shah, R (On the Application Of)AppellantSecretary of State for the Home DepartmentRespondent

LORD JUSTICE LAWS:

[1]This is a renewed application for permission to appeal against a decision of Clare Moulder, sitting as a Deputy High Court Judge in the Administrative Court on 4 July 2014. By that decision, she dismissed the applicant's application for judicial review. The applicant in the proceedings had sought to impugn the Secretary of State's delay in reaching a decision ultimately made on 27 May 2014 upon the applicant's application for limited leave to remain in the United Kingdom as a parent.[2]The applicant is a Pakistani national, born on 2 July 1987. He came to the United Kingdom in 2003 on a visitor's visa but unlawfully overstayed his leave. In April 2009, he married his British partner. A son, R, was born in November 2010 and is a British citizen.[3]An application for leave to remain on Article 8 grounds was refused on 27 May 2011. In June 2011, the applicant requested reconsideration of that refusal and it is the Secretary of State's delay in processing that request that forms the subject of the complaint in these proceedings. On 14 August 2012, the applicant's solicitors wrote to the Home Office stating that the applicant had separated from his wife. They described ongoing family proceedings and a dispute between the applicant and his wife and R's grandparents (the wife's parents) concerning the custody of the child R. The letter stated:
"Our client instructs that he wishes to remain in the UK with his child and remain as his sole carer. The family courts have exercised some concern as to our client's immigration status in the UK and it remains apparent that if it were not for his immigration status, our client would be the most appropriate carer for [R]."
[4]A further letter of 15 November 2012 sought expedition of the application for leave to remain "as a matter of extreme urgency", asserting that: "Our client is suffering an extreme detriment from the unresolved issues regarding his immigration status, as this is having an adverse effect of the outcome of the family proceedings".[5]That produced something of a stone wall and on 17 January 2013, as I understand it, the Family Court made a special guardianship order in favour of R's maternal grandparents, with a contact order in favour of the applicant.[6]The judicial review claim was launched on 27 February 2013 and judicial review permission was granted on 5 July 2013. A claim for damages was included. As I have said, leave to remain was at length granted to the applicant on 27 May 2014 but the applicant persists in his claim that the delay was unlawful and seeks damages. The Deputy Judge proceeded to cite section 55 of the Borders, Citizenship and Immigration Act 2009 and material provisions contained in the statutory guidance document Every Child Matters.[7]The applicant submitted there was a breach of section 55 and that paragraph 220 of Every Child Matters (which I will not set out) required the Secretary of State to expedite immigration applications where a child was likely to be affected. The delay in the case, it was said, was Wednesbury unreasonable or conspicuously unfair, the delay was itself a violation of Article 8 and there should be damages for breach of the Article. The Deputy Judge discussed all of the applicant's submissions fully and carefully. At the end of her judgment she summarised her conclusions in this way:
"60. For the reasons set out above I have concluded that: (i)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. (ii)The policy "
Every Child Matters" does not as a matter of construction extend to applications for 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. (iii)The delay in dealing with the application for the 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. (iv)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."[8]The references to "particular detriment" and "substantial prejudice" are important given Mr Vaughan's submissions. They refer to the judge's conclusion that it was not shown that the delay had an adverse impact on the applicant's case in the family proceedings, in particular as regards the possibility that he might have been appointed R's sole carer. The Deputy Judge declined in terms to accept that the delay had in truth prejudiced that case (see judgment paragraph 44, citing the social worker's report, which referred to other factors). It is true, as Mr Vaughan pointed out, that at paragraph 45 it is said: "Therefore whilst I accept that if his immigration status had not been precarious he might have had a chance, I do not think the evidence supports a finding that he 'would' have had a chance as counsel for the claimant submitted".[9]But then at paragraph 50, the Deputy Judge said this: "However there is no evidence to suggest that the delay on the part of the defendant was the sole or even the main reason why the claimant was not appointed sole carer. The social work report identifies a number of factors and the claimant did not challenge the guardianship proceedings. On the facts of this case for the reasons set out above the claimant has not established that the detriment, as formulated by the claimant, of not having the opportunity to present his case as sole carer was something which can be said to be something which the defendant has failed to alleviate. Even if the matter had been dealt with promptly by the defendant, the other matters raised in the social worker's report and referred to above would appear to have been significant obstacles to any application on the part of the claimant ... ".[10]The principal focus of the prospective appeal against the Deputy Judge's conclusions is that, having found a violation of section 55, the Deputy Judge should have held that the delay in the case was therefore unlawful (see Mr Vaughan's Practice Direction statement, paragraph 1(i)). There are other points but that seems to me to be the centre of it.[11]When the judgment was handed down, the Deputy Judge dealt with an application by the applicant in light of the judgment's terms for a declaration that the delay was contrary to section 55 and that the policy document Every Child Matters was likewise contrary to section 55. In her remarks after the judgment, the judge said this: "4. In my view the declaration sought by the claimant goes beyond my findings as set out in the judgment. To repeat my conclusions set out at paragraph 60 of the judgment, I have concluded that there is a duty on the defendant under section 55 of the 2009 Act to make arrangements to deal with applications which concern children in the UK in a way which safeguards and promotes the welfare of children. I have not concluded that the time taken to decide this application was contrary to section 55 of the 2009 Act. 5. Further, I have expressly stated in sub-paragraph 5 of paragraph 25 of the judgment that it is for the Secretary of State to determine what arrangements should be put in place in order to discharge their duty under section 55, and it is the absence of such arrangements which, in my view, amounts to a breach of her duties under section 55. The absence of such arrangements do not in my view lead to a conclusion that the statutory guidance was unlawful ... ".[12]I think it important to recognise, as I put to Mr Vaughan in the course of his helpful submissions this morning, that the applicant's whole case was in truth an assertion of his rights under Article 8, and his case on Article 8 was a claim that the delay prejudiced his position in the family proceedings, in particular his application to be named the sole carer of his young son.[13]Refusing permission to appeal to the papers Vos LJ said this:
"There was no evidence to suggest that the delay on the part of the SSHD was the sole or even the main reason why the claimant was not appointed sole carer for his child (see para 50 of the judgment). Thus, even if the claimant were logically right to suggest that the delay must have been caused by the SSHD's failure to put arrangements in place so as to take into account the best interests of non-applicant children, the delay cannot have given raise to the claim sought to be advanced. There are no grounds for contending that the judge misconstrued para 2.20 of 'Every Child Matters', nor that the guidance was itself unlawful, nor that the judge applied the wrong approach under article 8, or as to undue delay."
[14]I agree with those observations. The critical point is that the delay did not prejudice the applicant's Article 8 case relating to his child. The Deputy Judge was plainly entitled to conclude as she did on that issue. The applicant's submissions, skillfully presented by Mr Vaughan, relying for example on the decision in Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406, do not begin to establish the contrary. I should add that there is, in my judgment, no question of irrationality or other flaw which ought to invoke leave to appeal to this court.[15]For all those reasons, I dismiss this application.