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.
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, HMRC launched a criminal investigation into the main applicant and others suspected of 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. Further delays were caused by litigation over the legality of the search warrants used to obtain much of the evidence.
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 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 UT dismissed their claim. The family appealed.
In a unanimous decision, the Court of Appeal upheld the UT’s finding that although there was no express power to this effect, there was an implied power to defer 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.
However, the existence of such a power does not mean it will always be lawful to delay a decision. Lewis LJ cited the case of 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.
The question is fact-sensitive. On the facts of this case, Lewis LJ held that the reasons given for delaying making a decision were rational and lawful.
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