FH -v- Secretary of State for the Home Department (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Case number: CO/4781/2022

In the High Court of Justice
King’s Bench Division
Administrative Court

23 February 2023

Before:

His Honour Judge Lambert sitting as a Judge of the High Court

Between:

The King on the application of
FH

-v-

Secretary of State for the Home Department

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimant and the Acknowledgement of Service filed by the Defendant.

ORDER by His Honour Judge Lambert sitting as a judge of the High Court

  1. The Claimant is granted anonymity in the case pursuant to CPR 39.2(4) on the basis she is an asylum seeker and potential victim of trafficking and modern slavery. There is no countervailing public interest in identifying a party.

2. The application for permission to apply for judicial review is refused.

3. No order for costs.

Reasons

1. As your legal advisers are aware the court will be slow to involve itself issues of the management of public administration. This is considered thoroughly in R (O and H) v SSHD [2019] EWHC 148 (Admin) where it is observed:

“ [98] … … Delays are a function of the very substantial growth in the NRM’s caseload and the Home Office’s tardiness in responding. But in my judgment, it cannot be said that substantial delay is inherent in the arrangements. There is nothing to which my attention has been drawn, for example, which suggests there is some design fault in the system or some flaw in the arrangements which make delay inevitable. … …

It may well be that the Home Office failed in its management of the NRM to reach the highest standards of administration; it may well be that it would now be possible to devise a better system but neither of those facts means their conduct of the NRM to date has been lawful”.

I know from your evidence that things have changed and that delays have increased. It must be borne in mind that public administration is emerging from unprecedented peacetime disruption and recovery is going to take some time. I do not believe you have reasonable grounds to argue that you can overcome the high hurdle necessary before the court will intervene.

The judgment of Garnham J is a significant restatement of the principle that, in accordance with long-standing constitutional principle, the court will not generally involve itself in the internal management of a government department: see for example Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617; and R (Arbab) v SSHD [2002] EWHC 1249 (Admin).

I do not believe that your evidence as to the serious delays in the making of decisions in these cases makes it reasonably arguable to infer that the system is unlawful. The fact there are clear delays does not necessarily mean that the past and current systems were unlawful in public law. I adopt respectfully and with appropriate modification what Saini J said in R (on the application of MK) v Secretary of State for the Home Department [2020] 4 WLR 37 [125] “… …what the courts cannot do is embark upon a macro-economic and social policy designing exercise.”

I do not believe your grounds are reasonably arguable when they seek to impugn the decision to defer a determination. A reasonable decision-maker could properly seek further information bearing in mind that the facts and matters relied upon by the Claimant are peculiarly within her own knowledge.

Considering the matter in the light of the Defendant having agreed to provide a timescale of 3 months (absent special circumstances) for the issuing of the Claimant’s Conclusive Grounds decision with effect from Friday, 10 February 2023, a decision being due by 10 May 2023 (absent special circumstances) I do not believe your grounds on delay are reasonably arguable. I realise the Defendant’s promises will seem hollow to you after such a long time and I am very sorry for the delay you have encountered.

2. Reliance on the grant of permission in PM & LT v SSHD (CO/2493/2020, CO/2551/2020) does not seem to me to compare like with like. I believe the Defendant is right in seeking to distinguish the two regimes or two aspects of a regime. The Defendant has a wide margin of appreciation or discretion in administering these payments and I do not believe your grounds are reasonably arguable when they seek to impugn the Defendant’s administration of the support regime(s) as unlawful. Many may think the Defendant could do better but that will not provide grounds for public law challenge or any judicial remedy.