Source: All England Reporter
Publisher Citation: [2008] All ER (D) 334 (Jun)
Neutral Citation: [2008] UKHL 41
Court: House of Lords

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood

Representation Richard Drabble QC and Duran Seddon (instructed by Immigration Advisory Services) for the claimant.
  Philip Sales QC and Parishil Patel (instructed by the Treasury Solicitor) for the defendant.
Judgment Dates: 24 June 2008


Immigration - Leave to enter - Refusal of leave - Delay - Asylum seeker claiming removal amounting to unlawful interference with right to respect for private and family life - Whether delay by Secretary of State affecting substantive claim for right to private and family life - , art 8

The Case

Immigration Leave to enter. There was no specified period within which an immigration decision had to be made; the facts, and with them government policy, might change over a period; and the duty of the decision-maker was to have regard to the facts, and any policy in force, when the decision was made. It did not, however, follow that delay in the decision-making process was necessarily irrelevant to the decision. It might, depending on the facts, be relevant in any one of three ways. First, the applicant might during the period of any delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier. The longer the period of the delay, the likelier that was to be true. To the extent that it was true, the applicant's claim under art 8 would necessarily be strengthened. Secondly, an immigrant without leave to enter or remain was in a very precarious situation, liable to be removed at any time. Any relationship into which such an applicant entered was likely to be, initially, tentative, being entered into under the shadow of severance by administrative order.But if months passed without a decision to remove being made, and months became years, and year succeeded year, it was to be expected that that sense of impermanence would fade and the expectation would grow that if the authorities had intended to remove the applicant they would have taken steps to do so. That result depended on no legal doctrine but on an understanding of how, in some cases, minds might work and it might affect the proportionality of removal. The third way in which delay might be relevant was in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay was shown to be the result of a dysfunctional system which yielded unpredictable, inconsistent and unfair outcomes.

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