Case Law Clarifies Secretary of State's Discretion in Deferring Immigration Decisions Amid Ongoing Criminal Investigations

Citation: [2024] EWCA Civ 81
Judgment on

Introduction

The recent judgment in the case of Guren Zhou & Ors, R (on the application of) v Secretary of State for the Home Department [2024] EWCA Civ 81, provides a comprehensive discussion on the implied discretion of the Secretary of State for the Home Department (Respondent) in deferring a decision on an application for leave to remain in the United Kingdom. This case is of particular interest as it clarifies the legal principles governing such deferment, especially in scenarios involving ongoing criminal investigations, and significantly, it examines the associated rights under Article 8 of the European Convention on Human Rights (ECHR).

Key Facts

The Appellants, all Chinese nationals, challenged the Respondent’s decision to postpone the substantive decision on their application for leave to remain, initially based on the June 2021 application. The First Appellant faced an ongoing criminal investigation related to money laundering. Consequently, the Respondent argued that the decision on the application must be deferred until the criminal matters were resolved. This deferral was originally based on an erroneous claim of an ‘outstanding criminal prosecution’, later corrected to a mere ‘ongoing criminal investigation’. The Appellants contended that the deferral, along with the created ‘hostile environment’, violated their Article 8 rights and challenged the Respondent’s continued delay as being unlawful and unreasonable. An additional application for leave to remain was filed in August 2023, effectively varying the initial application and changing the grounds of the Applicants’ case from ‘skilled worker route’ to ‘family route’.

The judgment hinges on several legal principles, primarily the scope of the implied powers of the Secretary of State under the Immigration Act 1971. It reaffirms the precedent established in R (X and others) v SSHD [2021] EWCA Civ 1480 that the Respondent has an implied power to defer decisions on immigration applications under certain circumstances. Here, the court deemed the deferral lawful on the basis that it was ancillary or incidental to the Respondent’s functions relating to the administration and control of immigration as conferred by the Act.

Additionally, the court drew reference to other cases including Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673, highlighting the manner in which Article 8 is engaged in immigration contexts. It scrutinized decisions in the light of Nationality Immigration and Asylum Act 2002, sections 117A/117B(4)/117B(5), which directly impact Article 8 considerations.

The court also regarded the ‘best interests of the child’, guided by section 55 of the Borders, Citizenship and Immigration Act 2009, as interpreted in R (TS) v SSHD [2010] EWHC 2614 (Admin). However, it concluded that the Third Appellant’s welfare was not significantly at risk, and her Article 8 rights were not unlawfully interfered with by the Respondent’s decisions.

Outcomes

The Court of Appeal upheld the decision of the Upper Tribunal (UT) Judge Frances, finding that the Respondent’s delay in making a decision was neither unlawful nor irrational, nor unreasonable given the context and facts of the case. The court further concurred that, at the time, the deferral had not become excessive and that the interests and welfare of the Third Appellant, a child, had been appropriately considered. Additionally, it established that the appeal had become academic following the submission of a new application in August 2023, which varied the original claim, indicating that any decision of the Respondent would now be based on different grounds.

Conclusion

The Court of Appeal in Guren Zhou & Ors, R (on the application of) v Secretary of State for the Home Department has affirmed the Respondent’s authority to defer decision-making on immigration applications, especially where overlaying criminal investigations pertain to character and conduct considerations under the Immigration Rules. The judgment underscores the balance between such administrative discretion against individual rights under Article 8 ECHR, particularly in a ‘hostile environment’ resulting from overstaying. The decision delineates the multifaceted nature of delayed decision-making in immigration cases, demonstrating the judicial acknowledgement of administrative complexities intertwined with public law principles.