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PAROSHA CHANDRAN AND PRIYA SOLANKI SUCCESSFULLY RESIST SECRETARY OF STATE’S APPEAL AGAINST UNLAWFUL DELAY DECLARATION.
28 Mar 2018
The Court of Appeal yesterday dismissed the Secretary of State’s appeal in SSHD v Said and others  EWCA Civ 627 against a declaration that a delay of nearly 10 years in deciding the settlement applications of family members of a British Citizen was unlawful and gave rise to a claim for damages under Article 8 ECHR. Decisions to grant only 30 months leave to one family member, and to attempt to deport another, were also unlawful having been made in reliance on spent convictions which the transitional provisions of LASPO 2012 prohibit.
The Secretary of State argued that the claim should have been dealt with by the UKVI internal complaints procedure rather than judicial review and that a materially unfair trial process had taken place.
The Court of Appeal rejected all grounds.
The Admin Court was entitled to find that the delay, caused by admitted maladministration, was unlawful and that the case “crossed the threshold of “mere” maladministration and into “manifestly excessive” delay”. The Court of Appeal noted that much of the delay was caused by a “lack of “joined up” thinking within the Home Office”. Criticism could also not be made of the Admin Court’s exploration of whether damages would be pursued.
The UKVI’s complaint procedure was not an adequate alternative for ventilating already prolonged proceedings. Refusing the Secretary of State’s last-minute request to stay proceedings and refer the case to that process was not improper. Neither was permitting amendment to the grounds of review or proceeding with a ‘rolled-up’ hearing inappropriate as the Secretary of State “cannot, in principle, be surprised when litigants choose to challenge the lawfulness of fresh decisions made, after the commencement of review proceedings.”
Whilst the Admin Court appeared to determine matters beyond those addressed in argument and had wrongly supplemented his draft judgment post circulation, its individual findings had not been challenged and the outcome of his supplemented judgment was not materially affected.
Contempt proceedings will now continue against the Secretary of State for her further decision, made in breach of an order by the Admin Court, to again refuse an application of one family member and seek deportation on the same basis as that declared unlawful in this case.
Priya and Parosha were instructed by Muhunthan Paramesvaran of Wilsons LLP.
Case note by Eleri Griffiths.
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