Immigration practitioners today will be worryingly frustrated, alongside their clients, with the ever-increasing delays for average visa processing times made in-country or out-country by the Home Office.
Recently, the Home Office have published on their gov.uk website details of 2022 visa decision waiting times for applications made inside [1] or outside [2] the UK.
The following information on their website strikes out as alarming since it may be argued that it potentially breaches the Home Office's obligation as a public body to act proportionately and with good administration:
Leave to Enter application under Appendix FM
You should get a decision within 24 weeks once you attend your appointment at the visa application centre, if you are applying to settle in the UK as the spouse, partner, or family member of someone who has British citizenship or is settled in the UK.
Apply for leave to remain as a partner, parent or on the basis of your private life (10-year routes or 5-year parent route to settlement)
If you're currently applying under a 10-year route to settlement (or 5-year parent route to settlement), there are no standard processing times for applications submitted as a partner, parent or on the basis of your private life. The average wait time for a decision is currently 11 months. We are working hard to reduce this.
Asylum Claims
Alternatively, when it comes to deciding to asylum claims, the Home Office indicate on their website that applications are "usually" decided within 6 months (180 days) unless the claim is "complicated" [3]. However, Freedom of Information requests from home Office data obtained by the Refugee Council show individuals waiting for more than a year for a decision 'increased almost tenfold from 3,588 people in 2010 to 33,016 in 2020' [4].
Impact of 'Unreasonable Delays'
An 'unreasonable delay' by the Home Office to decide an application may result in an individual suffering from the following undesired harm whilst their application remains pending (this list is of course non-exhaustive):
- Long term consequences on mental health
- Employment opportunities being wrongly denied
- Business interests stagnating
- Negative impact on family life
- Unable to travel
The legal framework on 'Unreasonable delays' by the Home Office
It must be noted that a delay in a decision for any application (including applications made within the Immigration Rules or asylum claims sought) made to the Home Office (without any other detrimental factors affecting an applicant or possibly their dependents), is unlikely to form the basis for a successful challenge.
In EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41 (25 June 2008) [5], it was held that:
"As Mr Sales QC for the respondent pointed out, there is no specified period within which, or at which, an immigration decision must be made."
However, in the same judgement, it was also made clear that:
'"It is not suggested that four and a half years is a reasonable time for the respondent and his officials to take to resolve an application for asylum."
The caveat to EB (Kosovo) can however be found in R (on the application of FH & Ors) v Secretary of State for the Home Department [2007] EWHC 1571 (Admin) [6] where it was alleged that the Home Office had failed to decide applications within a reasonable time.
The 10 cases were described as "incomplete asylum cases" as although the original claim had been rejected and a subsequent appeal had been unsuccessful, the "fresh claims" which were based on further evidence or circumstances remained outstanding. The question to be considered was whether the delay in dealing with the applications can be properly regarded as unlawful so that some remedy can be granted by the Court.
The Home Office accepted in the case of FH & Ors that there is an implicit obligation to decide an application within a reasonable timeframe.
FH & Ors also provides the type of explanation that the Home Office was able to give to assess "whether the manner in which the backlog is being dealt with in all the circumstances is reasonable and fair overall'; thus, insufficient resources cannot avail the Home Office.
What to do if there is an 'unreasonable delay' in the decision-making process?
If beyond 6 months of any application pending and no decision being made by the Home Office, it would be advisable to contact the Home Office seeking an explanation, and a timeframe for a decision. Failing that, the remedy for challenging an unreasonable delay in the decision-making process by the Home Office would be to initiate a judicial review claim before the Upper Tribunal.
The underlying principle to be considered when preparing a judicial review claim in all delay issues is merely what the effect on the individual is, if there is a detriment, and whether there has been a prospective abuse of power because there is a legitimate expectation to make a decision within a set-time or there has been conspicuous unfairness in the decision-making process.
It may also be noted the options for pursing this remedy applies to any delayed application made before the Home Office and is not limited to family, Indefinite Leave to Remain, other applications under the Immigration Rules or asylum claims, rather it is important to establish the detriment incurred.
A well-drafted pre-action protocol letter may suffice to help expediate a decision by the Home Office. The pre-action protocol letter should set out the delay in a detailed chronology, any supporting evidence and clear representations articulating the impact of the delay and the determent it has had on the applicant or their dependents (if applicable).
The more you can factor in issues of detriment facing an applicant or their dependents in a pre-action protocol letter of judicial review grounds, the greater chance it will make a judicial review claim to succeed as was held in Akaeke v SSHD [2005] EWCA Civ 947, [2005] INLR 575 [7] where "If there are factors which, in the special circumstances of a particular case, reduce the significance of public policy considerations underlying immigration control in general, there is nothing in Huang, or in Article 8 itself, which requires them to be excluded."
However, often, it will be necessary to lodge a judicial review claim in the event the Home Office fails to provide a satisfactory explanation to a pre-action protocol letter or even in some cases (unsurprisingly to all), no explanation (see R (on the application of Frank Uchenna Obienna) v SSHD [2008] EWHC 1476 (Admin)) [8].
Currently, any judicial review claims before the Upper Tribunal in relation to delay are likely to be settled by the Home Office with an offer to consider the matter within three months, either following the pre-action procedure or the actual lodgement of the application with the Upper Tribunal and an applicant may well recover its legal costs in those instances.
The Home Office's reluctance not to fight these cases is resulting in nominal case law developing on the issue of 'unreasonable delay', and the development of the law remains limited within the knowledge of experienced immigration practitioners who should be consulted as a first port of call to consider bringing proceedings against the Home Office.
[1] https://www.gov.uk/guidance/visa-decision-waiting-times-applications-inside-the-uk
[2] https://www.gov.uk/guidance/visa-decision-waiting-times-applications-outside-the-uk
[3] https://www.gov.uk/claim-asylum/decision
[4] https://refugeecouncil.org.uk/latest/news/thousands-seeking-asylum-face-cruel-wait-of-years-for-asylum-decision-fresh-research-shows/
[5] https://www.bailii.org/uk/cases/UKHL/2008/41.html