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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mersin, R (on the application of) v Secretary Of State For Home Department [2000] EWHC Admin 348 (25 May 2000) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/348.html Cite as: [2000] EWHC Admin 348, [2000] INLR 511

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Between: QUEEN v. SECRETARY OF STATE FOR HOME DEPARTMENT ex parte DENIZ MERSIN [2000] EWHC Admin 348 (25th May, 2000)

IN THE HIGH COURT OF JUSTICE Case No: CO/4433/99
QUEEN S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London
WC2A 2LL
Thursday 25 May 2000

The applicant in this case is a citizen of Turkey who arrived in the United Kingdom on the 29^th August 1992. He claimed asylum on his arrival at the port. The respondent decided to refuse the application in July 1997 and that decision was informally communicated to the applicant's solicitors on 4 August 1997. The applicant's solicitors took the view that this decision was plainly wrong; they sought to have it reconsidered but that was refused, and decisions formally refusing asylum and leave to enter were served on the applicant on the 13 August 1997. The applicant appealed to the Special Adjudicator who, following an oral hearing on the 2 February 1999, allowed the appeal in a determination promulgated on the 29 March 1999. The Respondent did not appeal that decision. The time for appealing expired after five working days.
The adjudicator is not empowered to confer refugee status or to give indefinite leave to remain. There are two stages in that process. First, the decision to grant asylum i.e. to authorise the grant of refugee status itself, is made by Secretary of State (see para. 328 of the Immigration Rules). The body to whom he has delegated that decision is the Integrated Casework Department ("ICD") which is the department of the Immigration and Nationality Directorate of the Home Office ("IND") dealing with all asylum matters. The second stage is the actual grant of leave to enter. This is taken by the immigration officer at the port where entry was originally sought (see section 4 of the Immigration Act 1971). If asylum has been granted, then the officer is obliged to grant leave to enter; if it is refused, the immigration officer must consider whether there is a right of entry under any other provision of the immigration rules. The rationale for this division in asylum cases between the body which grants asylum and the body which formally confers the right to enter is not clear to me, but it is plainly what the law requires, as the Court of Appeal recognised in R v Secretary of State for the Home Office ex parte Salem [1999] Q.B.805
No decision to grant refugee status was made until 30 September 1999, over six months from the date of the Adjudicator's decision. The actual grant of leave to enter, which is effectively the implementation of the asylum decision, was not then taken until 13 November 1999, some six weeks later.
Proceedings for judicial review were issued on the 9 November 1999. The applicant sought mandamus directing the respondent to grant him refugee status and damages for losses suffered by the delay. By the time the matter was considered for permission for judicial review, the applicant had been granted refugee status and indefinite leave to remain. However, Maurice Kay J., on February 17, 2000 held that the case should continue after hearing submissions about the scale of difficulties facing similarly placed applicants. He was also of the view that the case could constitute a test case on the question of damages. In fact in the hearing before me, Mr. Drabble QC, for the applicant, disavowed any claim for damages. He did however make it clear that he was seeking a declaration not merely that the respondent had acted unlawfully by delaying in respect of this case, but that at the date of the hearing the respondent was continuing to be in breach of his duty to deal sufficiently expeditiously with those applicants for asylum who had been successful before the Special Adjudicator. Moreover, in his opening submissions he submitted that so outrageous was the treatment of asylum seekers who fell into that category that he was seeking an order whereby the Secretary of State would be obliged to report to the court every three months or so to demonstrate that he was properly complying with his duty. The precise form of relief that he sought was contained in an amended form 86A which was served on the respondent on the 18 May 2000. This sought relief in the following terms:
"A final injunction, alternatively an order of mandamus, requiring the Respondent to remedy that default in his system of operation for issuing refugee status to asylum applicants who are successful on their appeals before the immigration appellate authorities such that the system complies with any declaration the Court is minded to make as to the lawfulness of the conduct of the Respondent in this respect; and to revert to the Court in three months from the date of order with a report as to the action taken to remedy the said defaults and the consequent affects on the average period between promulgation of successful appeal in determinations and the issue of refugee status."
I consider that it would be wholly inappropriate for a court to grant such relief. The courts can identify breaches of the law by the Secretary of State, but I would be trespassing on the Respondent's own discretion if I were to formulate an injunction or mandamus directing him how to deal with these cases in the future. Furthermore, in my view I would be trespassing on the function of Parliament if I were to try to hold the Minister to account to the court for his future conduct in the manner proposed. Ministers report and are accountable to Parliament, not to the courts. Even if I were to find that the respondent was in continuing breach of his legal obligations, it would be quite wrong to assume that he would be unwilling to abide by those legal obligations in the future in accordance with any judgment I would give, yet that seems to me to be the assumption that would need to be made if any such order were even to be considered. There is no basis at all for making that assumption here.
The facts
I shall set out the relevant background in fuller detail. I have seen witness statements from Ms. Fiona Ripley, the applicant's solicitor, on behalf of the applicant, and Mr. Alan Underwood, the Director of the Integrated Casework Department, on behalf of the Respondent. He in fact amended his original witness statement to deal with the amended relief.
Mr. Underwood helpfully described the procedures, following the determination of a Special Adjudicator, which were in place at the relevant time. Unfortunately, the pressures on the ICD were such that they were simply not complied with. In theory, at least until 1^st April 1999 all determinations by the Special Adjudicator were first sent to the Presenting Officer's Unit of the ICD (the "POU"). Any allowed determinations would then be sent to the relevant Case Management Unit. In the case of allowed appeals that were not being appealed, the caseworker in the Case Management Unit should have authorised the grant of refugee status and sent the file to the port of entry so that the immigration officer could then grant refugee status and indefinite leave to remain. Given the essentially clerical nature of this task, this ought to have provided a relatively speedy system. Unfortunately, in March 1999 resources were apparently limited and determinations were not processed by CMUs. Instead, they were left unprocessed and the papers were passed to another unit, the ICD's Correspondence Linking Unit, who were responsible for ensuring that all correspondence was sent for linking to the appropriate file. This did not deal with the backlog, and by April 1999 there were some 4000 determinations, most of which were dismissed appeals rather than successful ones, which were in limbo, not having been linked to any file. A special exercise was then conducted which succeeded in linking the determinations to the relevant file. For some reason it appears that this exercise did not unearth the determination in the applicant's case.
On the 20 May 1999 the applicant's solicitors wrote to the IND asking them to expedite the applicant's asylum status. They informed the IND that the applicant had collapsed and had been taken to hospital, and that it would assist his recovery if he could visit his uncle in Germany. In addition it was pointed out that the applicant could not obtain work and that it would assist him to obtain benefit for asylum status to be granted. On the 27 May the applicant attended the Public Enquiry Office ("PEO") of the IND with a further copy of the determination. Following that visit the applicant's file was requested by the PEO and it arrived on the 4 June. The applicant returned to the PEO on the 27 July but yet again the determination had not been linked to the applicant's file. It was finally linked on that day and sent to the Unit responsible for allocating work with a request that it be given priority attention. There were apparently no case officers available to process the file, and it was sent to a holding location.
On 9 September the applicant's solicitors wrote to the Immigration Officer at Heathrow Terminal 3 to see whether the file had been received by them, and at the same time they wrote to the ICD to ask them to expedite the matter. No reply was sent to the latter letter, although the file was finally sent to the immigration officer on the 30 September. By the 8 October the applicant's solicitors were understandably becoming extremely dissatisfied with the applicant's treatment and they wrote to the immigration office at Terminal 3, the IND and the Treasury Solicitors threatening judicial review In the letter to the Immigration Office the solicitors included a report from Dr. John Rundle which expressed the view that the applicant had probably suffered an epileptic attack and that the stress of waiting would have a considerable effect upon the likelihood of a further attack. On 14 October the Chief Immigration Officer replied saying that he was unable to accede to the applicant's request, that his illness was not life threatening, and that accordingly there was no justification for the Immigration office departing from its usual practice of dealing with the applications in order of receipt. The grant of refugee status was made on the 13 November, following hot on the heels of the judicial review application made four days earlier. On any view, the treatment of the applicant has been less than satisfactory, and indeed, Mr. Underwood very properly apologised to the applicant for the delays he had suffered.
Dr. Underwood in his witness statement indicated that changes had been made which had improved the position since the applicant's experience. He said that since the 1 April 1999 the POU would, through its presenting officers, consider whether or not to appeal an adjudicator's decision and if not, would send the papers on to the a CMU for action. Unfortunately, even then it was necessary for staff to be available to authorise the grant of asylum and send the papers on to the immigration office. In fact by September 1999 there was apparently again a backlog of some 15,000 determinations, including some appeals. By February some 9000 of these had been handled of which about 500 were allowed appeals.
The procedure in the POU was further amended in December 1999. All dismissed files were then linked to files in the POU itself before being sent onto the CMU. I was told that an even more significant step was envisaged, namely that the Presenting Officers themselves would be able to authorise the grant of refugee status directly. They would then send the file on to the immigration officer with the appropriate direction. Clearly this would very dramatically speed up the process.
Meanwhile Mr. Underwood has said that since the 6 March a special unit, the Post Decision Support Unit, has been set up to deal with all post decision work, including successful appeals. A special drive was initiated from 22 May 2000 to clear the backlog.
Ms. Ripley made a further witness statement in response to Mr. Underwood's claim that the reforms in April 1999 and February 2000 had improved the position. She said that she had contacted other solicitors active in the field and there had still been significant delays after the April reforms, the majority of allowed asylum appeals taking more than 5 months before the appellant had been granted refugee status. Furthermore, the changes in February did not seem to have had much impact.
Whilst I have no doubt that there were significant delays even after the reforms in April 1999, I do not think it would be right for me to rule on whether these delays were in all the circumstances unlawful, for two reasons. First, the nature of the evidence about the effect of these changes on the handling of asylum claims is relatively scant and anecdotal. Second, Mr. Underwood has, as I have indicated, drawn attention to further recent reforms, which, if implemented properly, will have a significant impact on the position, and indeed may clearly have done so. In view of this, it would in my view be wrong to consider granting a declaration relating to the position as at the time of the hearing before me, and unsatisfactory to do so in respect of any period between the date when the applicant's position was considered and the hearing.
Given that refugee status had now been granted, and that the claim for damages was not pursued before me, I have considered whether this would be an appropriate case to grant relief, assuming that the claimant made good his case. There is clearly power to do so in an appropriate case, as the House of Lords recognised in R v Secretary of State for the Home Department ex parte Salem [1999] 1 A.C.450.The respondent has not sought to argue that I should in my discretion refuse any relief on the grounds that there is no continuing dispute, and I have decided that this is one of those exceptional cases where it would not be a pointless or academic exercise. In my view it is appropriate to consider whether the delays in dealing with the applicant's own application were such as to constitute unlawful delays. Had the allegation been that the delays were simply the result of acceptable procedures being wrongly applied in this particular case, so that they could not be said to be the consequence of any policy about how cases of this type should be handled, I would not have been minded to give any relief this long after the refugee status has been granted. However, although there were certain specific failings in this case which exacerbated the problems and were, I hope, not typical of the way in which the generality of cases were handled, the delays were to a significant extent the result of a deliberate decision about how to deal with cases of this kind, coupled with what appears to have been at the crucial time a lamentable lack of resources. This was recognised by Mr. Underwood who, it should be noted, accepted that the applicant's case was not unique and that others had experienced similar delays. To that extent, therefore, this is in the nature of a test case.
According to Mr. Underwood, a major cause of the difficulties in handling this kind of case was that, on advice, the department adopted working methods and a new IT support system which was designed to facilitate decision making but in fact wholly failed to achieve the benefits envisaged. An anticipated 40% improvement in productivity was not forthcoming. This was because of a number of factors such as increased demand, staff inability to work the new system, delayed training in the new system, and the problems created by the pre-existing backlog. Apparently there was a stage when some 60,000 telephone calls were being made daily but only a few hundred were being dealt with. A major feature of the system which inevitably meant that there would be delays in the processing of post adjudication claims was that the ICD, which was set up in 1999, replaced five previous single disciplinary casework directorates. The multi-functional directorate dealt with all cases in order, without recognising any priority for successful applicants before the Special Adjudicator.
The implications of delay

The delays in according immigration status can have significant adverse effects upon a successful asylum seeker. I will consider these relatively briefly since they were not in substance disputed. First, it is not possible to travel abroad; such travel can only be made if the refugee has a United Nations travel document. That is issued pursuant to the 1951 Convention but only once formal refugee status is accorded. The applicant suffered from this consequence, as I have indicated above. Second, the right to British citizenship arises only once a person has been settled for one year and has been resident for five years (see section 6 and Schedule 1 to the British Nationality Act 1981). However, in order to be settled a person has to have been granted indefinite leave to remain. Although there is nothing in the immigration rules requiring a successful asylum seeker to be given indefinite leave to remain, that is the practice adopted by the authorities. Delays will put back the start of the period for acquiring settled status, which will be potentially important for those asylum seekers who already have the five years residency. Third, there are problems in obtaining housing because until a person is recorded by the Secretary of State to be a refugee, he is ineligible to take up local authority accommodation or to apply as being homeless to the authority (see sections 161(2) and 181(2) of the Housing Act 1996). Finally, there are adverse social security consequences. It was a matter of some debate before me precisely how detrimental the position currently is. However, I understood it to be common ground that as a consequence of section 11 read with schedule 1 to the Asylum and Immigration Act 1996, the applicant himself could not claim benefit once asylum had initially been refused until he was subsequently recorded by the Secretary of State as a refugee. Thereafter he could receive benefit at the full rate. In addition, he would have his claims back-dated at that time to the date when he was refused asylum, but only at a lower rate than he would otherwise have received, namely 90% of the usual rate. Accordingly, the delay in determining his status resulted not only in a delay in his receiving payment, but also in a lower overall payment.
I should add that the position has since changed for persons who claimed asylum on or after the 3rd April 2000 (see section 21ZB of the Income Support Regulations). They are entitled to the full rate back to the date they first claimed asylum. There was some debate before me as to the precise effect of this new provision, and in particular whether, by reason of the proper construction of the relevant regulations, an asylum applicant would be adversely affected if his status was not determined within fourteen days of the disposal of his appeal. That issue does not bear on this or similarly placed applicants and accordingly I have not been required to resolve it.
Quite independently of these practical disadvantages, there are understandable stresses that someone is likely to suffer when his application has been based on a fear of persecution which has been held to be well-founded, and yet he is left in a continuing state of uncertainty about his future. As I have indicated, in this case the applicant's doctor thought that such stresses might adversely affect the applicant's health.
The law.
The starting point is the effect of a decision of the Special Adjudicator. Mr. Drabble QC for the applicant submitted that once the appeal had been upheld and not appealed to the Immigration Appeal Tribunal there was a duty on the Secretary of State to give effect to it. Mr. Catchpole, who presented a cogent and forceful argument for the respondent, denied that there was such a duty. He pointed out that technically an appeal to the Special Adjudicator is not an appeal against a rejection of asylum per se, but rather an appeal that the proposed removal to a particular country would constitute a breach of the 1951 Convention. As Sir John Balcombe pointed out in the Salem case in the Court of Appeal, adopting an apt phrase of counsel, (page 830)
"As Mr. Garnham, for the Secretary of State, put it in his clear and helpful skeleton argument: "refusal of leave to enter is the occasion of the right to appeal; the fact that removal would be contrary to the United Kingdom obligations under the Convention is the ground of the appeal."
Mr. Catchpole submitted that even after the adjudication the Secretary of State still had to satisfy himself that the criteria for asylum set out in paragraph 334 of the Immigration Rules were satisfied and he submitted that the adjudicator's determination was merely a stage in that process. He submitted that it would be open to the Secretary of State to refuse to authorise asylum if there were some change in the material facts since the adjudication. such as where there was a coup which rendered a previously unsafe country no longer unsafe, or if there was another safe third party country where he could be sent. In my view it misrepresents the significance of the adjudicator's decision simply to treat it as part of the decision making process. Mr. Catchpole did realistically accept that even on his analysis, it would only be in the most exceptional situation that asylum could be refused in the face of an adjudicator's determination. Moreover, he accepted that even if there was a residual discretion in an appropriate case for the Secretary of State not to authorise the grant of refugee status, once it had been authorised, there was no discretion at all for the immigration officer at the port of entry to refuse to recognise that status and, in accordance with established practice, to grant indefinite leave to remain. That was a purely ministerial act which the immigration officer was under a duty to carry out.
In my opinion there is a clear duty on the Secretary of State to give effect to the Special Adjudicator's decision. Even if he can refuse to do so in the event of changed circumstances or because there is another country to which the applicant can be sent, there is still a duty unless and until that situation arises. It would wholly undermine the rule of law if he could simply ignore the ruling of the Special Adjudicator without appealing it, and indeed Mr. Catchpole does not suggest that he can. Nor in my opinion could he deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it. In my judgment, once the adjudicator had determined the application in the applicant's favour, the applicant had a right to be granted refugee status, at least unless and until there was a change in the position. In this connection it is material to note that the decision of the Special Adjudicator determines the position at the date of the determination itself. I should add that even if the applicant does not, properly analysed, have a right in the strict sense, in my view his position is sufficiently akin to a right (whether described as a legitimate expectation or not) for the same public law principles to apply.
The crucial question, therefore, is whether the delays in this case constituted a breach of that duty. I accept Mr. Catchpole's submission that there is plainly no fixed period within which the Special Adjudicator's determination has to be implemented. I also accept that it is not legitimate to read in such a fixed period by reference to subsequent social security legislation, which was one of the arguments advanced by the applicant. The later statute cannot affect the proper construction of the earlier one. Mr. Drabble contends that it is nonetheless necessary for the Secretary of State to act within such period as is reasonable in all the circumstances, and that in any event the delays in this case- seven and a half months for what were in essence ministerial acts- were outside the bands of Wednesbury reasonableness.
In my opinion it is necessary to bear in mind three features of this case. First the Secretary of State has not deliberately delayed in granting refugee status, for example in order to conduct further inquiries or anything of that kind; he accepts that the delays are solely the result of the administrative procedures taking their course. Second, whilst no doubt shortage of staff has in part explained the delay, a very important reason for the delay was that no distinction was made at the relevant time between those who had successfully appealed an initial refusal and those- a very much larger number- whose applications for asylum were still being considered. That was, of course, because the respondent chose to organise matters in that way, operating through a multi-functional directorate which gave no priority to the position of those in the applicant's position. Third, the respondent has accepted that the delays in this case, and other similar cases, were unacceptable. His contention is that it was not unlawful.
Mr. Catchpole's argument was in essence very simple. He said that the department must be entitled to organise its work in such manner as it thought administratively appropriate and that unless it did so in a wholly irrational way, the court should not interfere. It is not for the court to substitute its view of how the administration should be organised for that of the department. This was particularly so in this case because the decision to adopt the multi-functional directorate was taken after advice from management consultants. Furthermore, the IND was under enormous pressure throughout the relevant period, and the court should not place it in a position where it would have to divert its resources to give priority to claims such as those made by the applicant. That would simply prejudice other groups.
Mr. Drabble submitted that where rights were at stake, or in any event something akin to a right, the courts should be vigilant to protect them and administrative difficulties could provide no defence to dilatory action. The respondent was obliged to perform his duty within a reasonable time, reasonableness being determined by the nature of the duty, the task imposed upon the respondent, and the potential effect upon the applicant. Here, he submitted, the nature of the task was virtually clerical in nature, and yet the delays had seriously prejudicial effects on the applicant.
It is well established that if the delays are for an improper purpose or frustrate the exercise of a statutory duty, the courts will interfere: see e.g. Engineers and Manages Association v ACAS [1980] 1WLR302(H.L.) and The Cheng Poh v Public Prosecutor, Malaysia [1980] A.C.458. The question here is whether delays resulting (at least in part) from the way in which the administration of functions is organised can render the delays unlawful.
Mr. Drabble relied upon two cases in particular in support of his argument that the delays were unlawful. First, he submitted that the judgment of Woolf LJ, as he then was, in R v Social Services secretary ex parte Child Poverty Action Group [1990] 2 Q.B.540 at 544-545 showed that in an appropriate case the courts could question whether the Secretary of State had allocated sufficient staff to enable the duties of the department properly to be fulfilled. No doubt that is right, but the evidence here falls short of establishing Wednesbury irrationality even at the time when the applicant's case was under consideration, and further resources have been provided since.
In my view, far more pertinent was the decision of the Court of Appeal in R. v Secretary of State for the Home Office ex parte Phansopkar [1976] Q.B.606. The applicant in that case was the wife of an Indian who was resident in England and registered as a United Kingdom citizen. Under section 1(1) of the Immigration Act 1971 he became a patrial with a right of abode in the U.K. and his wife, who lived with his four children in India, automatically became entitled to the same right. However, in order to gain entry into the U.K. the wife had to have a certificate of patriality which was granted only once she was able to satisfy the authorities that she was indeed the wife of a patrial. In Bombay there was a fourteen month delay in granting the certificate, principally it seems because no distinction was drawn between those claiming a right of entry and those seeking leave to enter. The applicant came to England in an attempt to jump the queue but was refused entry on the grounds that the immigration authorities had adopted a policy that a person seeking a certificate of patriality had to do so in her own country of origin. In a joined appeal a Mrs. Begum from Bangladesh ran a similar argument. The Court of Appeal held that there was no justification for adopting such a rule, and that the authorities should have considered the women's applications in the U.K. Lord Denning M.R. summarised the legal position as follows: (page 621)
"Each of these two ladies is entitled to come into England without let or hindrance provided that she is truly the wife of her husband. She does not have to seek permission. She comes as of right and not by leave. No one can refuse to admit her, provided she can prove it by means of a certificate or patriality: see section 3(9) of the Act of 1971.
Such being her right, I do not think it can be taken away by arbitrarily refusing her a certificate, or by delaying to issue it to her without good cause. She can invoke Magna Carta: "To none will we sell: to no one will we delay or deny right or justice." It seems to me to be implicitly in this legislation that a wife, who is truly a wife, is entitled to apply for a certificate of patriality and to have her application examined fairly and in a reasonable time. If refused a certificate, she has no right of appeal to anyone. No even to an adjudicator or to the appeal tribunal: see section 13 (2) and (3). She is then thrown back to the lesser class of those who do not enter by right but only by leave: see section 3(1). If her right is to be of any avail, the authorities must set up the appropriate machinery by which she can apply for a certificate of patriality. There is nothing in the Act or the Rules to tell us what the machinery is except that a certificate of patriality may be "duly issued to [her] by a British Government representative overseas or by the Home Office": see the Statements of Immigration Rules for Control on Entry: Commonwealth Citizens, H.C. 79, 1973, rule 4. Seeing that it can be issued by one or other of those authorities, I should have thought that her application could properly be made to one or other of them and that it should be entertained by that particular authority-the one to whom she applies-unless there was some sufficient reason for sending her off to the other."
Later in his judgment he said this:
"Such being the nature of the inquiry, I do not think the Home Office in London are justified in refusing the application simply because these two ladies are "jumping the queue." The ought, I suggest, to be a separate queue in Bombay or Dacca for those wives who seek a certificate of patriality. If they fail to satisfy the officer, they should go to the bottom of the other queue of those who require leave to enter. That should discourage fraudulent applications. By making a separate queue for certificates or patriality, there should be little delay and the Home Office could well then say that they will not deal with them in London."
Scarman LJ drew a similar distinction between those who have a right and those who have only a hope of entry: (page 627)
"As I read the Secretary of State's reply to each application, he refused to consider either application upon its merits, expressing the view that it would be more convenient, more satisfactory, for the applications to be dealt with in India or Bangladesh. If the true balance be between the convenience or the authorities (for it cannot be convenient for the ladies) and respect for human rights, the Secretary of State would be misreading the scales of justice. But in truth the balance, as he sees it, is one of justice between those who, with these ladies, jump the queue and the members of the queue in India and Bangladesh. That is more difficult, but I think the answer that Mr. Kadri and Mr. Cotran make for the appellants is fair: the queue which imposed the delay consists substantially of applicants for leave, and should not be allowed to delay those who are claiming a right. And I could add that the facts of each case are such as to indicate a strong probability that the right will be proved-as it was in every such application handled in India or Bangladesh in 1974."
Later he said that
"If he thinks it right to place those who have (or claim to have) a right in a queue which is swollen by those who do not have a claim of right, he should say so in the rules and so obtain the approval of Parliament for his view of the matter."
Lawton L.J gave a judgment to similar effect.
Mr. Catchpole said that this case was distinguishable on the grounds that in this case there was a considered decision to recast the decision-making process in the way it was applied. I do not find this convincing. Indeed, the right in this case seems to me to be stronger than in Phansopkar since in that case it was still necessary for the applicant to prove that she was the wife of a patrial. Here there is nothing more for the applicant to establish before being granted refugee status.
In my judgment if someone has established the right to some benefit of significance, as the right to refugee status and indefinite leave surely is, and all that is required is the formal grant of that benefit (in the absence at least of a change in circumstance since the right was acquired or other exceptional circumstance), then it is incumbent upon the authority concerned to confer the benefit without unreasonable delay. The resources available to the authority will be part of the circumstances which can be taken into account when determining whether the delay is reasonable or not. However, if the authority fails to have regard to the fact that a right is in issue, it will have failed to take into account a relevant factor and will be acting unlawfully. In this case the respondent ought to have treated the applicant and those in a similar position differently to other categories of cases. The failure to do that both rendered the decision unlawful in traditional Wednesbury terms and meant that the refugee status was not granted within a reasonable period.
I should add that in my view even taking both stages in the procedure separately, each was unlawful considered separately. For the ICD to take six months to send the file on was wholly unacceptable. The immigration officer at Heathrow had merely to grant the status and indefinite leave without any discretion being exercised at all. He also appears to have simply taken the applicant's case in order of receipt of all cases in his file, without giving any weight at all to the fact that the applicant had already been found deserving of refugee status. It must have taken significantly longer to decide why his application should not be expedited and then inform him of the reasons than it would have done simply to deal with the application. To tell him that his illness was not life threatening and that accordingly he should wait his turn simply added insult to injury. Common sense seems to have become stifled by bureaucratic rules.
For these reasons I consider that the applicant is entitled to a declaration that the respondent had delayed unlawfully in granting him refugee status and indefinite leave to remain.
I should add this. Mr. Drabble said in opening that the conduct of the respondent had been scandalous. That, in my view, is too harsh a verdict. Any judge sitting in the Crown Office is acutely aware of the extremely severe, at times almost overwhelming, pressures which the IDU has been under, and Mr. Underwood's statement confirmed this. The officials have an exceptionally difficult and unenviable job where there are many brickbats given, but barely the whiff of a bouquet. In my view this applicant has been poorly and unlawfully treated, but active steps are being taken to ensure that the lessons of his case, and those of others like him, have been learnt. There is every reason to hope that the deficiencies highlighted in this judgment will not recur.