Unreasonable delays in immigration applications
Delays by public bodies
Delays in decision-making are often a by-product of limited government resources and sudden spikes in applications. Complex applications that engage discretion or human rights arguments, and/or include lengthy supporting evidence or engage politically sensitive issues, are particularly vulnerable to delay. The Home Office often refers such sensitive applications to different parts of the Government and this frequently causes delays.
Delays can be highly prejudicial to applicants seeking to enter the UK, or for those already here who are unable to work, study or leave the country while their application is pending.
Claims for judicial review
In the event of ongoing delay in an immigration application, the remedy of last resort is a claim/application for ‘judicial review’.
It may seem daunting to engage in litigation with the Home Office, but in our experience, the Home Office is likely to settle meritorious claims towards the beginning of proceedings and agree a timetable for a decision.
That does not mean it is the right decision to litigate every delayed application. The key issues are the prejudice caused by the delay and how much time has elapsed.
The law on delay
Where a public body (such as the Home Office) makes a decision of significance in respect of a person, there is an implied legal duty to make the decision within a reasonable time.[1]
Delay in discharging a public law duty may amount to an unlawful failure to comply with that duty.[2]
The time that is ‘reasonable’ is a fact-sensitive question. It will depend upon a combination of factors including: the length of the delay; any reasons for it; “the resources available”[3]; and the “consequences arising from the delay”[4] including “whether the individual has suffered any loss or prejudice as a result”.[5] The “entire circumstances of each case have to be borne in mind”.[6]
The lawfulness (or otherwise) of a delay may also be impacted by the extent to which the Home Office has provided proper and reasonable explanations.[7]
The Courts (and the Home Office) are more sympathetic to applicants the more prejudicial the delay is to them. At its highest, that could be serious medical reasons for applicants or their close family members, recent bereavements, or other family reasons. The Courts and Home Office are more sensitive to cases that involve children, such as where a parent needs entry to the UK to accompany a child or where a child has a school place and needs to start school.
The Home Office publishes its usual ‘processing times’ for most application types, which are a touchstone in determining whether a delay has become unlawful. Processing times (as at the time of writing) vary widely:
- Visitor visa – three weeks
- Skilled Worker visa – eight weeks
- Sponsor Licence Applications – eight weeks
- Family Visa (except ‘Private life’ applications) – 12 weeks (outside the UK) / 8 weeks (inside the UK – Switching/Extension).
- Private life applications – one year
- Asylum – six months
Surpassing the published processing time will often be insufficient to obtain the Court’s assistance in a judicial review unless significant additional time has elapsed. But there are mechanisms for ‘supervising’ the Home Office such as submitting a subject access request for a copy of your file. Sometimes it is possible to establish where the delay has occurred and the results of personal data disclosures can often be helpfully cited in pre-action correspondence for unlawful delay. We would work with you to ensure that everything has been done to try and unblock any delays with issuing proceedings for unlawful delay being the last measure.
Conclusion
While some delay is inevitable in administrative decision-making, the law is clear that public bodies must act within a reasonable timeframe, provide adequate explanations where they cannot, and remain accountable when delay causes real prejudice.
Legal advice can help ensure that all reasonable steps have been taken before escalating matters to the Courts, and careful preparation remains key to persuading the Courts that intervention is necessary.
If your application has been pending for a long time, or your intended application is complex and so might be delayed, we are able to advise and assist you.
For further information, please contact Matt Ingham or William Craig Cohen in our Citizenship & Immigration team.
[1] R v HM Treasury ex p Petch [1990] C.O.D. 19; R v Gloucestershire CC ex parte P [1993] COD 303; and Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97.
[2] R v SSHD ex parte Phansopkar [1976] QB 606; Teh Cheng Poh v Public Prosecutor, Malaysia [1980] AC 458, PC; Engineers and Managers’ Association v ACAS [1980] 1 WLR 302; R (Anufrijeva) v SSHD [2003] UKHL36, [2004] 1 AC 604.
[3] R (K) v SSHD [2014] EWHC 2477 (Admin) at [15].
[4] Ibid
[5] Ibid
[6] R (Rechachi) v SSHD [2006] EWHC 3513 (Admin) at [38]
[7] TM v SSHD [2018] UKUT 00299 at [62] and Obienna [2008] EWHC 1476 (Admin).
