S, R (on the application of) v Secretary of State for the Home Department [2007] EWCA Civ 546 (19 June 2007)

S, R (on the application of) v Secretary of State for the Home Department [2007] EWCA Civ 546 (19 June 2007)

The Secretary of State's decision to defer consideration of the claimant's asylum application for the sole purpose of meeting PSA targets, without regard to fairness or the merits of individual cases, constituted unlawful fettering of discretion and an abuse of power. This illegality caused the claimant to lose a benefit he would otherwise have received. The court has power to order reconsideration on the proper basis, with the expectation that the claimant will be granted Indefinite Leave to Remain.

Citation
[2007] EWCA Civ 546
Parties
Appellant: SSHD; Respondent: R(S)
Jurisdiction
England and Wales
Judgment Date
19 June 2007
Procedural Posture
Judicial Review (immigration/asylum) / Appeal From Queen's Bench Division, Administrative Court to Court of Appeal (civil Division)
Outcome
Appeal dismissed; decisions quashed and remitted for reconsideration.
Legal Topics
Abuse of Power, Legitimate Expectation, Delay in Administrative Decision Making, Article 8 ECHR, Discretionary Leave to Remain, Fettering of Discretion
Administrative Law Immigration Law Human Rights Law Abuse of Power Legitimate Expectation Delay in Administrative Decision Making Article 8 ECHR Discretionary Leave to Remain +1 more

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Parties

SSHD

Appellant

R(S)

Respondent

Procedural Posture

Judicial Review (immigration/asylum) / Appeal From Queen's Bench Division, Administrative Court to Court of Appeal (civil Division)

Legal Issues

  1. 1 Whether the Secretary of State's decision to defer consideration of pre-2001 asylum applications to meet PSA targets was unlawful as an abuse of power
  2. 2 Whether the delay and subsequent policy changes deprived the claimant of a benefit he would otherwise have received
  3. 3 Whether the refusal of discretionary leave to remain and the section 96 certificate were unlawful

Ratio Decidendi

The Secretary of State's decision to defer consideration of the claimant's asylum application for the sole purpose of meeting PSA targets, without regard to fairness or the merits of individual cases, constituted unlawful fettering of discretion and an abuse of power. This illegality caused the claimant to lose a benefit he would otherwise have received. The court has power to order reconsideration on the proper basis, with the expectation that the claimant will be granted Indefinite Leave to Remain.

Court Disposition

Appeal dismissed; decisions quashed and remitted for reconsideration.

Orders

  • The Secretary of State's decisions of 3 November and 2 December 2005 are quashed.
  • The case is remitted to the Secretary of State to redetermine in light of the judgment, with the expected consequence that the claimant will be granted Indefinite Leave to Remain.