In Zhou & Ors v Secretary of State for the Home Department [2024] EWCA Civ 81 the Court of Appeal has re-affirmed the high threshold for challenging delays in decision-making by the Home Secretary and the scope of any appeal against a refusal to grant permission for judicial review.

Background

Mr Zhou and his family were on a series of visas and eventually applied, unsuccessfully, for indefinite leave to remain in 2018. As overstayers, the family was granted immigration bail in June 2019. Mr Zhou was then arrested on suspicion of money laundering on 24 March 2021, interviewed and released pending further investigation.

On 3 June 2021 he applied for leave to remain as a Tier 2 skilled worker, sponsored by a financial services company, with his family as his dependants. The Home Secretary deferred consideration of the application on 28 July 2021 because their records showed that Mr Zhou had an outstanding criminal prosecution. That was wrong because there had never been a decision to charge Mr Zhou, let alone a prosecution.

After a pre-action protocol letter was submitted on behalf of Mr Zhou, the Home Secretary changed tack and the Home Office’s response of 22 February 2022 said the application raised “exceptionally complex issues” and they expected to make a decision by 5 April 2022. The judicial review application was lodged on 4 April 2022.

On 10 May 2022, the National Crime Agency told the Home Office they were expecting legal advice on a decision to charge by late August 2022.

The Upper Tribunal refused permission for the judicial review first on the papers, and then at an oral hearing, on the basis that there was evidence of the ongoing investigation and a decision to charge would be made in due course. Because of that, the tribunal held that the power to defer or delay a decision on the application was lawful.

An application for permission to appeal was lodged and it was June 2023 by the time the Court of Appeal considered the application. Lord Justice Males asked the Home Secretary to provide an update as to whether a decision to charge had in fact been made.

The Government Legal Department said that records updated on 10 July 2023 showed ‘‘impending prosecution’. Please do not casework, place on hold new checks 6 weeks.’ Males LJ wasn’t having any of it and granted permission on the basis there had been sufficient time for the prosecuting authorities to decide whether Mr Zhou should be charged and a decision should be made on the applications.

As if things weren’t convoluted enough, in August 2023, Mr Zhou and his family varied their Tier 2 application to an article 8 application.

The Court of Appeal’s decision

This case raises a couple of interesting points; procedural and substantive.

The procedural point was the question of whether the Court of Appeal should re-hear the full application for permission for the judicial review, or only review of the Upper Tribunal’s decision. Mr Zhou’s counsel argued that the court should consider the ongoing delay in considering the application. The Home Secretary argued that the variation had made the delay in the first application academic.

It was argued on behalf of Mr Zhou that the Upper Tribunal hadn’t properly considered the effect that the ‘hostile environment’ would have on the family and the ongoing restrictions they faced. It was also argued that the best interests of Mr Zhou’s daughter hadn’t been considered.

The Home Secretary argued the issues to do with the ‘hostile environment’ were self-induced because the family had been living in the UK unlawfully prior to their initial application. They said the Home Secretary had a number of implied and incidental powers to facilitate the effect administration of immigration control including a power to decide when and how applications are dealt with.

On the substantive points, ultimately, the Court of Appeal decided that the variation of the Tier 2 application effectively stopped the clock on the delay issue with the previous application and the Home Secretary would need to consider those applications afresh. The whole basis for the application for judicial review was now irrelevant and the appeal was academic.

In any event, the Upper Tribunal was correct to rely upon the Court of Appeal’s judgment in R (on the application of X and others) v SSHD [2021] EWCA Civ 1480, that the Home Secretary had a power to defer a decision on application in appropriate circumstances. The question for the court was whether the exercise of a power to defer was a lawful one, on the particular facts of a case:

What is lawful will be ‘fact-sensitive’, and what is a ‘reasonable time’ will inevitably involve a degree of elasticity or ‘flexibility’ (per Carnwath LJ at [51] in R (S) v SSHD). On the facts of this case, and given the apparent seriousness of the matters in respect of which the Mr Zhou had been arrested and questioned, the UT Judge was entitled in my judgment to the view that the Respondent’s decision to defer was lawful.

The Upper Tribunal was also not criticised for relying on the NCA correspondence because it was entitled to expect that a charging decision would be made in the time specified. Any exposure to the ‘hostile environment’ was a choice which Mr Zhou and his family made when they chose to stay in the UK unlawfully.

Conclusion

This case is an example of the divergence in approach in applications for judicial review north and south of the border. The Court of Appeal limited itself to a ‘review’ of the Upper Tribunal’s decision on traditional public law grounds. However, in Scotland, one of the main advantages is that an appeal against refusal of permission is a full re-hearing. That means that litigants in Scotland essentially get a second bite at the cherry which is why appeals against refusal of permission are much more common in Scotland than they are in England. Had the Court of Appeal allowed a full re-hearing of the matter, it would possibly have meant a different result.

The case also re-affirms how difficult it is to successfully challenge Home Office decisions based on an unlawful or unreasonable delay. In the authority cited by the Court of Appeal, a delay of 4.5 years by the time of the appeal hearing still wasn’t enough to be unlawful. However, from my own experience, submitting a pre-action protocol letter can prompt the relevant department to make a decision. The problem is if you do not get a favourable response, practitioners then need to discuss with their clients whether they should simply wait it out or spend more time and money in pursuing an application for judicial review.