S, R (on the application of) v Secretary of State for the Home Department

S, R (on the application of) v Secretary of State for the Home Department

The Secretary of State's decision to defer consideration of the claimant's asylum application, solely to meet administrative targets, constituted unlawful fettering of discretion and conspicuous unfairness amounting to an abuse of power. This illegality deprived the claimant of a benefit he would otherwise have obtained under the policy then in force. The subsequent refusal of discretionary leave to remain failed to take account of this injustice and was therefore unlawful. The case should be remitted for reconsideration, with the expectation that the claimant will be granted Indefinite Leave to Remain.

Parties
Appellant: SSHD; Respondent: R(S)
Jurisdiction
England and Wales
Judgment Date
19 June 2007
Procedural Posture
Judicial Review / Appeal From Queen’s Bench Division, Administrative Court
Outcome
appeal dismissed
Legal Topics
Abuse of Power, Legitimate Expectation, Delay in Administrative Decision Making, Article 8 ECHR, Unlawful Fettering of Discretion
Public Law Immigration Law Human Rights Law Abuse of Power Legitimate Expectation Delay in Administrative Decision Making Article 8 ECHR Unlawful Fettering of Discretion

Case Brief

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Parties

SSHD

Appellant

R(S)

Respondent

Procedural Posture

Judicial Review / Appeal From Queen’s Bench Division, Administrative Court

Legal Issues

  1. 1 Whether the Secretary of State's decision to defer consideration of the claimant's asylum application constituted an abuse of power or unlawful fettering of discretion
  2. 2 Whether the delay and subsequent policy changes unlawfully deprived the claimant of a benefit he would otherwise have obtained
  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, solely to meet administrative targets, constituted unlawful fettering of discretion and conspicuous unfairness amounting to an abuse of power. This illegality deprived the claimant of a benefit he would otherwise have obtained under the policy then in force. The subsequent refusal of discretionary leave to remain failed to take account of this injustice and was therefore unlawful. The case should be remitted for reconsideration, with the expectation that the claimant will be granted Indefinite Leave to Remain.

Court Disposition

appeal dismissed

Orders

  • The decisions under challenge 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.