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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

09 JAN 2014

R (Kumar) v Secretary of State for the Home Department [2013] EWHC 3794 (Admin); (2013) PLLR 135

Immigration - Leave to remain - Delay

Delay in dealing with representations made by the Claimant who was pursuing leave to remain did not render the eventual decision illegal.

4 December 2013

Administrative Court

Philip Mott QC

(1)        The Claimant, Tarsem Kumar, is a national of India who claimed to have entered the UK illegally on 3 June 1998. He claimed asylum in October 2001, and made an application for leave to enter as a spouse of a person in the UK on 8 February 2002. The Claimant's asylum claim was rejected on 29 July 2003, and his appeal rights were deemed exhausted on 7 December 2003.

(2)        The Claimant sought return of his passport from the Defendant in December 2003, claiming that he sought to leave voluntarily. In April 2007, the Defendant replied stating that it was policy not to return travel documents where a person was subject to enforcement action.

(3)        On 27 November 2010, the Claimant applied for his case to be considered under the Legacy Casework Programme. The reply to this indicated that the case would be considered by a caseworker, and the Defendant promised to deal with the case out of turn. No decision had been made by 2012, and a response arrived on 3 April 2012, in which there as a promise to review the case within one month. The decision was eventually only made on 7 December 2012. That claim rejected that the Claimant had a claim pursuant to Article 8 ECHR, and concluded that nothing warranted the grant of leave to remain as a Legacy Case.

(4)        By these proceedings, the Claimant challenged that decision alleging that the decision was irrational and unfair.

(5)        By the time of the hearing, the Removal Directions had been cancelled and the Defendant had consented to reconsider the matters set out in the decision letter of 7 December 2012, along with any further submissions made.

(6)        The Claimant alleged that it was irrational for the Defendant not to consider exercising her discretion outside the rules relating to the Legacy Cases, and had the Claimant's case been considered promptly, it would have been decided under different rules, and leave would have been granted.

(7)        HELD: The Court acknowledged that the delay in deciding the Claimant's case was unfortunate, but noted that the Claimant had not been detained, but instead the delays had allowed him to remain the UK.

(8)        The delay could therefore only be viewed as having strengthened his Article 8 ECHR claims.

(9)        In this case, neither the delay nor the broken promises that a decision would be made shortly rendered the maladministration of the Claimant's case illegal. The Court concluded that the Claimant's challenge thus failed.

Claim dismissed

Key paragraphs

[12] - Grounds.

[16] - Delay unfortunate.

[17] - Not illegal.

[18] - Conclusion. 

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