Can an immigration decision be postponed while a criminal investigation is ongoing?

 The Court of Appeal considered this issue in R (X and others) v Secretary of State for the Home Department [2021] EWCA Civ 1480. The court determined, with certain limitations, that the answer is "yes."

Objection to a five-year postponement pending a fraud inquiry

In April 2017, a family applied to extend their licence via the Tier 1 (Entrepreneur) method. HM Revenue and Customs initiated a criminal investigation against the principal applicant, Mr X, shortly before they lodged the applications. He and 12 others were accused of being involved in a tax evasion scheme.

Mr. X was arrested but not prosecuted, and he was released on bond while the inquiry was ongoing in 2016. It was especially complicated, with HMRC seizing over 800 pieces of evidence and getting information on over 100 bank accounts. Litigation regarding the legitimacy of the search warrants used to gather most of the material added to the delays. The investigation was still underway at the time of the Court of Appeal's ruling.

At some point, the Home Office decided to postpone a decision on Mr. X's Entrepreneur application and those of his dependents until HMRC completed its inquiry. In 2017, the family was informed of this decision.

The family objected to the Home Office's decision to postpone its judgement on their immigration petitions, claiming that:

In these situations, there is no authority to postpone a decision on an immigration application.

This imposed an additional criterion on the applicants (i.e., not being charged with an offence) that was not included in the Immigration Rules.

The activities of the Home Office were illegal and unreasonable.

Their claim was dismissed by the Upper Tribunal. The family filed an appeal.

There is an implied right to postpone making a decision...

In a majority ruling, the Court of Appeal confirmed the Upper Tribunal's conclusion that, despite the lack of specific jurisdiction to do so,

Under the [Immigration Act 1971], there was an implied ability to suspend or delay making a decision on an application for leave to remain. This power is incidental or ancillary to the statutory powers granted to the Secretary of State under the Act.

It was not deemed to constitute importing a new requirement into the Immigration Rules as a procedural choice because it was not a requirement that the applicants had to satisfy.

...but it must be used lawfully.

Although the Secretary of State has the authority to postpone a decision on an application, doing so is not necessarily legal. Lord Justice Lewis cited R (S) v SSHD [2007] EWCA Civ 546, in which the decision to delay decisions in asylum cases in order to satisfy Treasury targets was held to be illegal and an abuse of power.

However, on the facts of this case, Lewis LJ held that the reasons given for delaying 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 duties – were incorrect.

The question is fact-based. Even if the judgement was found to be lawful in this case, a comparable decision could be successfully challenged on public law grounds, such as irrationality, if the underlying facts support this finding. Similarly, while the sheer length of the delay was found to be lawful in this case, a second challenge could be successful if the applications were still waiting several years later.

Of course, this will be of little comfort to the family concerned, who have already been waiting five years for a judgement on their petitions. However, as the court repeatedly stated, the family is entitled to Section 3C leave.

Delays breed more delays.

Although this is a seemingly minor judgement that is unlikely to effect many people, massive delays in the criminal justice system (exacerbated by the epidemic) mean that criminal suspects are having to wait longer and longer for their cases to be processed. This will undoubtedly have an impact on any outstanding immigration petitions. The implications will be felt most acutely by those dependants who are not facing criminal charges but are nevertheless forced to wait until their sponsor's criminal case is concluded.

Allowing applicants to travel overseas without forfeiting their section 3C leave or abandoning their applications would be one answer to the challenges generated by extended delays. There is unlikely to be much desire in the Home Office for such a compromise, especially if the delays are the result of an ongoing criminal investigation.