This was the question before the Court of Appeal in R (X and others) v Secretary of State for the Home Department [2021] EWCA Civ 1480. The court decided that the answer is “yes”, with some caveats.

Challenge to five-year delay pending fraud investigation

The case concerned a family who applied to extend their permission in the Tier 1 (Entrepreneur) route in April 2017. Shortly before they lodged the applications, HM Revenue and Customs launched a criminal investigation into the main applicant, Mr X. He and 12 other people were suspected of being involved in a tax fraud conspiracy.

Mr X was arrested but not charged and released on bail in 2016 while the investigation went on. It proved particularly complex, with HMRC seizing around 800 pieces of evidence and obtaining information about over 100 bank accounts. Further delays were caused by litigation over the legality of the search warrants used to obtain much of the evidence. At the date of the Court of Appeal’s decision, the investigation remained ongoing.

At some point, the Home Office decided to delay making a decision on Mr X’s Entrepreneur application, as well as those of his dependants, until HMRC concluded its investigation. That decision was communicated to the family in 2017.

The family challenged the Home Office’s decision to delay its decision on their immigration applications, alleging that:

• There is no power to delay deciding an immigration application in these circumstances
• Doing so imposed an additional requirement (i.e. to not be charged with an offence) on the applicants that is not in the Immigration Rules
• The Home Office’s actions were unlawful and irrational

The Upper Tribunal dismissed their claim. The family appealed.

There is an implied power to defer making a decision…

In a unanimous decision, the Court of Appeal upheld the Upper Tribunal’s finding that although there was no express power to this effect,

there was an implied power under the [Immigration Act 1971]… to defer, or delay, taking a decision on an application for leave to remain. Such a power is incidental or ancillary to the statutory functions conferred upon the Secretary of State by the Act.

As a procedural decision, it was not held to be importing an additional requirement into the Immigration Rules, as it was not a requirement which the applicants had to satisfy.

…but it has to be exercised lawfully

Although the Secretary of State has a power to delay deciding an application, it will not always be lawful to do so. One of the authorities cited by Lord Justice Lewis was R (S) v SSHD [2007] EWCA Civ 546, in which the decision to delay making decisions in asylum cases in order to meet Treasury targets was found to be unlawful and an abuse of power.

On the facts of this case, however, Lewis LJ held that the reasons given for delaying making a decision – that the outcome of the HMRC investigation had a direct bearing on how the applications should be decided and that it would be a waste of time and resources for the Home Office to attempt to carry out its own investigation – were rational.

The question is fact-sensitive. Even though in this case the decision was held to be lawful, it would nevertheless be possible for a similar decision to be successfully challenged on public law grounds, like irrationality, where the underlying facts support this finding. Similarly, although the sheer length of the delay was held to be lawful in this case, it is possible to imagine a second challenge being successful if the applications were still pending several years on.

Of course, this will offer little comfort to the family involved, already waiting five years and counting for a decision on their applications. As the court was at pains to stress, though, the family has section 3C leave so they have remained lawfully in the country throughout all this.

Delays beget delays

Although this is a relatively niche decision unlikely to affect that many people, widespread delays across the criminal justice system (exacerbated by the pandemic) mean criminal suspects are having to wait longer and longer for their cases to wind through the system. That will inevitably have a ripple effect on any pending immigration applications. The consequences will be felt particularly keenly by any dependants who are not facing criminal charges themselves but who are nevertheless stuck waiting until their sponsor’s criminal case is resolved.

One solution for ameliorating the problems caused by long delays would be to permit applicants to travel abroad without losing their section 3C leave or withdrawing their applications. There is unlikely to be much Home Office appetite for such a concession — particularly where the delays are the result of a pending criminal investigation.