Tribunal decisions

The decision

Case No: JR-2025-LON-001018
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

9 May 2025

Before:

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

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Between:

THE KING
on the application of

D1527
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr A Schymyck
(instructed by Duncan Lewis Solicitors), for the applicant

Mr M Howarth
(instructed by the Government Legal Department) for the respondent

Hearing date: 29 April 2025

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J U D G M E N T

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Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the applicant is granted anonymity.
No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the applicant. Failure to comply with this order could amount to a contempt of court.

Judge Norton-Taylor:

Introduction
1. This judgment follows a “rolled-up” hearing at which permission and, if appropriate, the substantive challenge was addressed. The sensible approach, as agreed by the parties, was for me to hear full argument on relevant issues and then to decide on the arguability question and, if necessary, the substance.

2. At the outset I wish to express my gratitude to Counsel and their legal teams for the hard work which has clearly gone into the preparation for and presentation of this case.

3. The applicant is a national of Egypt and has a lengthy and fairly complex history in the United Kingdom. At the heart of this case is the question of whether there has been an unlawful delay and/or a breach of a procedural legitimate expectation by the respondent in respect of further submissions made by the applicant on 9 February 2018.1

4. To set out the history in full would lengthen this judgment very considerably and is in any event unnecessary. Using the detailed chronology contained in the applicant’s judicial review bundle as a starting point, the following events are of significance:

January 2014 applicant arrived in the United Kingdom and claimed asylum

28 November 2014 applicant’s asylum claim refused by the respondent

8 October 2015 First-tier Tribunal dismisses applicant’s appeal

8 June 2016 applicant convicted of sexual assault and given suspended sentence of 16 weeks’ imprisonment, suspended for 12 months

16 November 2016 applicant arrested and held on remand on charges that were later dropped or of which he was acquitted

5 April 2017 applicant transferred to Brook House IRC. During this detention, the applicant was the subject of significant abuse by detention officers. Incidents of abuse were secretly filmed for BBC Panorama (the programme was aired in September of that year) . The applicant self-harmed and made attempts to take his own life.

15 June 2017 applicant released from detention

9 February 20182 applicant submitted detailed further asylum and Article 3 ECHR submissions to the respondent, relating in particular to his risk of persecution on the basis of his bi-sexuality and the perception on return that he would be viewed as avoiding or deserting compulsory military service. It is those further submissions which, at the time of preparing this judgment, remain outstanding.

26 March 2018 applicant wrote to the respondent requesting he be granted discretionary leave to remain given his on-going judicial review proceedings, on-going criminal and civil proceedings being considered and allow him to aid his recovery and effectively engage in mental health treatment.

13 September 2018 respondent responded to pre-action letter refusing to grant discretionary leave and confirming that in light of on-going litigation activity, the applicant’s further submissions would be placed on hold until the conclusion of the civil proceedings.

12 March 2019 applicant issued judicial review proceedings (FAM v SSHD CO/995/2019) to challenge the decision to refuse to grant him discretionary leave to remain and maintain him on immigration bail in circumstances where he could not be lawfully removed or detained. The applicant also challenged the unlawful delay in determining his further submissions

16 April 2019 Cranston J granted the applicant permission for judicial review in FAM v SSHD on his discretionary leave to remain/immigration bail grounds, but refused permission in respect of the delay of determining further submissions, concluding that there was “no flaw” in the respondent’s position of waiting until the civil claim had concluded.

10 June 2019 Proceedings in FAM v SSHD settled by virtue of a consent order on the basis that the respondent agreed to grant the applicant 12 months’ discretionary leave to remain, with the understanding that further leave would be granted at least whilst on-going civil litigation and investigations were on-going.

19 July 2021 respondent voided the applicant’s further submissions of 9 February 2018 on the basis that there were multiple applications in existence. This decision was not communicated to the applicant.
5 November 2021 respondent announced the Brook House Inquiry.
5 November 2021 applicant was absolutely discharged for an offence relating to February 2018 arrest.

19 September 2023 Brook House Inquiry Chair published her report into mistreatment at Brook House in 2017.

3 October 2023 respondent granted the applicant 2 ½ years’ discretionary leave running until 2/6/25.

28 November 2024 respondent confirmed that the applicant’s further submissions of 9 February 2018 had been voided.

19 December 2024 respondent confirmed that the further submissions of 9 February 2018 had been reinstated and that the “aim” was to make a decision on them within three months, absent special circumstances.

10 January 2025 applicant provides the respondent with updated objective evidence to supplement his further submissions of 9 February 2018.

24 February 2025 the respondent allocated the applicant’s further submissions to a caseworker.

19 March 2025 The three-month timeframe for making a decision on the further submissions expired

3 April 2025 This application for judicial review is made.

4 April 2025 Expedition of these proceedings as ordered by Upper Tribunal Judge Norton-Taylor and a “rolled-up” hearing is listed for 29 April 2025.

10 April 2025 The relevant caseworker contacted the applicant’s solicitors to confirm that all relevant evidence has been provided prior to making a decision.

The materials before me
5. In preparing this judgment I have considered the following:

(a) The applicant’s judicial review bundle;

(b) The applicant’s addendum bundle;

(c) The agreed authorities bundle;

(d) Judgment of the Court of Appeal in R (on the application of the Good Law Project) v The Prime Minister and others [2022] EWCA Civ 1580;

(e) The respondent’s Acknowledgement of Service, including the summary grounds of defence;

(f) Skeleton arguments from Mr Schymyck and Mr Howarth, in respect of which I granted extensions of time for them to have been provided;

(g) A witness statement, dated 29 April 2025, from Mr Sean Williams, HEO Team Leader of a unit of caseworkers within the Home Office who consider further submissions.

6. In respect of Mr Williams’ witness statement, I granted the respondent permission to rely on this evidence, notwithstanding its very late service. I took into account the fact that these proceedings have been expedited and preparation time had been at a premium. I also took account of the fact that Mr Schymyck did not expressly object to the evidence being admitted, although he made a number of criticisms of its content. Finally, I took into account the fact that the witness statement did have a bearing on the matters with which I am concerned.

7. One item of evidence which has not been forthcoming from the respondent is an internal policy document said to have been relevant to the respondent’s safeguarding procedures which had to be addressed prior to any decision on the further submissions being issued. I will return to this matter later in the judgment.

The applicant’s case in outline
8. I intend no disrespect by setting out only a digest of the written and oral arguments made by Mr Schymyck. I have of course taken into account all that has been said in behalf of the applicant before reaching my conclusions in this case.

9. Two ground of challenge have been put forward: first, that the ongoing delay in respect of the outstanding further submissions of 9 February 2018 is unlawful; second, that the failure of the respondent to have made a decision prior to the expiry of the three-month timeframe given by the respondent on 19 December 2024 breaches a procedural legitimate expectation.

Delay
10. The delay challenge can be sub-divided into the following central points, which I express here much less eloquently than Mr Schymyck put the applicant’s case before me.

11. First, the applicant submits that a series of irrational decisions/acts and omissions by the respondent over the course of time have created, or at least significantly contributed to, the ongoing delay in making a decision on the 2018 further submissions. This renders the delay unlawful. This submission may be described as the ‘delay by irrational acts and inactions’ argument (my expression, not that of the applicant).

12. Specifically, the applicant relies on the following five decisions/acts (in chronological order):

(a) The decision of 13 September 2018 to put the applicant’s further submissions on hold pending the conclusion of his civil claim against the respondent;

(b) The decision made on 19 July 2021 to void the further submissions, an error which was not recognised until 19 December 2024;

(c) The decision that internal safeguarding policy and the applicant’s circumstances required a particular level of caseworker to be allocated to be allocated, which, alone or in combination with other factors, caused a further period of delay between December 2024 and the allocation of the caseworker on 24 February 2025;

(d) The failure to have provided the applicant with any information regarding why the March 2025 timeframe had been missed; and

(e) The ongoing delay after the caseworker had been allocated.

13. I record here that the applicant does not seek to argue that the entire system operated the by the respondent for the making of decisions on further submissions was, or is, dysfunctional and therefore unlawful.

14. Second, and alternatively, the applicant contends that the very significant passage of time from 2018 to date in and of itself demonstrates that the delay is manifestly unreasonable and therefore unlawful. This submission may be described as the ‘delay by inaction’ argument (again, my description).

15. Third, and again in the alternative, it is said that the delay has caused a detriment to the applicant by virtue of the impact on his mental health. I will refer to this as the ‘detriment’ argument.

16. Fourth, it is submitted that a combination of the first, second, or third arguments are sufficient for the applicant to demonstrate an unlawful delay.

Procedural legitimate expectation
17. The applicant submits that the respondent’s stated position on 19 December 2024 constituted a sufficiently clear and unambiguous promise such as to create the procedural legitimate expectation that a decision on the further submissions would be made by 19 March 2025 and that no adequate reasons have been provided as to why that deadline was missed. The “absent special circumstances” qualification was relevant only to the content of the promise, not its nature. Any purported justification put forward by the respondent that safeguarding issues prevented compliance with the three-month deadline did not stand up to scrutiny. The use of the word “aim” in the respondent’s correspondence of 19 December 2024 was not fatal to the applicant’s challenge: the case-law does not require an absolute promise, simply one which is “sufficiently” clear and unambiguous.

The respondent’s case in outline
18. My summary of the respondent’s case is again pared back to the essentials, but I have considered all that Mr Howarth ably put forward on the respondent’s behalf.

19. It is submitted that the applicant’s history is complex and has involved a variety of significant factors which the respondent was bound to consider prior to making a decision on the further submissions. Those factors included, but are not limited to, the following:

(a) The two criminal convictions;

(b) The applicant’s participation in the Brook House Inquiry;

(c) The ongoing civil claim in respect of events which took place at Brook House;

(d) The applicant’s mental health;

(e) The effect of any decision on the further submissions in respect of the applicant’s discretionary leave;

(f) That, through a consent order in relation to previous judicial review proceedings in 2019, the applicant had agreed not to pursue a challenge to an alleged delay in deciding the further submissions until after the civil claim had been resolved and that claim was outstanding.

Order made at the hearing
20. Mr Schymyck invited me to make an oral order for the respondent to serve on the applicant’s representatives the decision on the further submissions no later than 5pm on 1 May 2025, that being the timeframe stated by Mr Williams in his witness statement. Mr Howarth suggested that such an order would be unnecessary in light of the evidence contained in that witness statement.

21. I decided that, unusually and in the particular circumstances of this case, I should make the order sought by the applicant. The evidence from Mr Williams was clear: “a decision in respect of the Applicant’s asylum further submissions is anticipated imminently and will be concluded before COP [close of play] on 1st May 2025 barring any unforeseen circumstances.” In light of this, and the overall history in this case, it was appropriate to fix service of the decision to a specific date. If any “unforeseen circumstances” were to arise, I gave the respondent liberty to apply to vary my order, copying in the applicant. I would be in a position to deal with any such application promptly.

The relevant legal framework
22. By the conclusion of the hearing, there appeared to be little if any dispute as to the relevant legal framework within which I should consider the applicant’s grounds of challenge, albeit that differing emphasis has been placed on the consequences of that framework in light of the facts of this case.

23. In respect of delay, the focus was on three authorities: R(S) v SSHD [2007] EWCA Civ 546; R(FH) v SSHD [2007] EWHC 1571 (Admin); and R(O) v SSHD [2019] EWHC 148 (Admin). Having carefully considered those well-known cases and in light of the parties’ positions as stated in the respective skeleton arguments ([9]-[15] of Mr Schymyck’s and [8]-[10] of Mr Howarth’s), the relevant principles are:

(a) There is a general duty to make a decision on an asylum application or further submissions within a “reasonable period of time”;

(b) Unlawful delay may result from irrational decisions/acts or inactions;

(c) Delay may be unlawful where the period of time in question is “manifestly unreasonable”;

(d) Delay may be unlawful where there is a particular detriment caused to the individual;

(e) Delay challenges are only likely to succeed in very exceptional circumstances;

(f) Delay challenges such as the present are context-specific.

24. The respondent’s relies on the Good Law Project case in order to show that internal policies are not automatically enforceable as a matter of public law. As I understand her argument, it is submitted that the applicant cannot rely on the internal safeguarding policy referred to by the respondent as a basis for demonstrating unlawful delay or legitimate expectation.

25. Turning to the procedural legitimate expectation issue, the test is set out in Re Finucane [2019] UKSC 7, at [62]:

“From these authorities it can be deduced that where a clear and unambiguous undertaking has been made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so. The court is the arbiter of fairness in this context.”

26. It is for the applicant to established that such an undertaking has been given: Re Finucane, at [64].

Discussion and conclusions
Permission
27. In light of the written and oral arguments put forward, I conclude that the applicant’s challenge on the two grounds is arguable. I therefore move on to consider the substance of his case.

Delay by irrational acts and inactions
28. I begin by addressing what I have previously described as the argument based on delay by irrational acts and inactions.

29. I conclude that the respondent’s decision of 13 September 2018 to put the applicant’s further submissions on hold pending the outcome of the civil claim was not irrational. This is based on the following considerations.

30. First, I do have concerns as to why it was deemed appropriate take that course of action and if this was a full merits appeal in which I could substitute my own decision for that of the respondent’s I might have found in the applicant’s favour. However, I am confined to considering the challenge on public law grounds, specifically that of irrationality, which in itself sets a high bar.

31. Second, in March 2019 the applicant brought a judicial review challenge to, amongst other matters the delay in determining the further submissions made on 9 February 2018. On 16 April 2019, Cranston J refused permission on the papers in respect of that particular ground. That constituted a judicial decision on the merits of the delay challenge as it then stood. The application for permission was not renewed.

32. Third, by the consent order sealed on 10 June 2019, the applicant agreed not to pursue that part of his challenge “seeking resolution of his substantive asylum claim (until after the conclusion of the parallel litigation)”. It is common ground that the reference to the “substantive asylum claim” related to the outstanding further submissions of 9 February 2018 and the “parallel litigation” related to the ongoing civil claim. In my judgment, the terms of the consent order places a very significant hurdle in the path of the applicant insofar as the respondent’s decision to put his further submissions on hold is concerned.

33. Fourth, I fully appreciate the fact that the claimed significance of the 2019 judicial review was only articulated in detailed form on the day of the hearing. However, Cranston J’s refusal of permission was noted at [21] of the respondent’s summary grounds of defence and in my view it cannot properly be said that the applicant has been ambushed by this particular aspect of the case history.

34. Fifth, bringing the above together, two significant elements are combined: Cranston J concluded that the respondent’s decision to put the further submissions on hold was unarguably lawful and the applicant then expressly agreed not to pursue the delay point until the conclusion of the civil claim. In consequence, I conclude that the specific decision to place the applicant’s further submissions on hold was not, at the time it was made, irrational.

35. Mr Howarth submitted that the effect of the June 2019 consent order was “key” to the remainder of the applicant’s delay challenge, not least because the civil claim remains outstanding and the position stated in the consent order either prevents him from relying on any subsequent delay, or at least significantly weighs against his challenge.

36. In my judgment, neither the decision of Cranston J, nor the consent order, have the effect of precluding the applicant from relying on subsequent delays by the respondent. I agree with Mr Schymyck’s submission that res judicata (or indeed any other legal principle which might in theory be fatal to this part of the applicant’s case) does not apply. This is for at least four reasons. First, it has never been pleaded by the respondent. Second, I am satisfied that neither Cranston J nor the applicant at the time of the consent order could have contemplated that the civil claim would remain outstanding six years later. The consent order cannot properly be regarded as a complete bar to a delay challenge, no matter how long the civil proceedings might have taken. Third, other actions and inactions by the respondent said to be unlawful occurred after the refusal of permission and the consent order: they were new events and cannot rationally have been ignored under or relegated to insignificance by the terms of Cranston J’s decision and/or the consent order. In this regard and given his history of litigation, it is inevitable that the applicant would have (if he had been informed) challenged the decision to void the further submissions and that such a challenge would have included reliance on delay. Fourth, the respondent has not sought to place reliance on sections 16(3C)-(3E) and 15(5A) of the Tribunals, Courts and Enforcement Act 2007 and I do not consider it appropriate to apply either provision of my own volition.

37. Nor, for reasons set out below, do I consider that the Cranston J decision and the consent order had the effect of entirely undermining the applicant’s reliance on the voiding decision of 19 July 2021.

38. I turn then to that decision. The respondent accepts that the decision was made in error, although she does not appear to go so far as accepting that it was irrational. For the following reasons, I conclude that it was clearly irrational.

39. First, the respondent’s acceptance that the decision was erroneous is tantamount to an acknowledgement that it was unlawful. That in turn is of itself sufficient to show that it was irrational. At least, it provides a strong indication that it was.

40. Second, the voiding decision, as explained briefly in the respondent’s letter of 28 November 2024, had no apparent legal basis. The fact that the applicant’s representatives had made a separate request for discretionary leave (not connected to any protection issues) did not entitle the respondent to void the further submissions (which were based entirely on protection issues).

41. Third, the evidence from Mr Williams does not materially undermine the applicant’s case. He states that the applicant would in any event have failed to satisfy the suitability criteria for Article 8 claims due to the criminal convictions. However, the further submissions with which these proceedings are concerned had nothing to do with Article 8. In addition, the respondent would at all times from November 2021 at the latest have been in possession of the information required to decide whether the applicant should be excluded from the protection of the Refugee Convention pursuant to section 72 of the Nationality, Immigration and Asylum Act 2002. Therefore, in addition to what I have said at [36] above, the irrational decision I have identified was material.

42. Fourth, the respondent failed to notify the applicant of the voiding decision. In my judgment, this compounded the initial error and was in addition procedurally unfair.

43. I find that the consequence of the irrational decision was that an unlawful delay existed between 19 July 2021 and the acknowledgement of the error in the respondent’s letter of 19 December 2024. I note that, but for the applicant’s Pre-Action Protocol letters of 31 October 2024 and 5 December 2024, it might well be that the error would not have been detected or rectified by any proactive steps by the respondent.

44. In my judgment, the conclusion on the irrational voiding decision entitles the applicant to succeed in his application for judicial review. The delay caused by the irrational decision was material and has inevitably led to additional delays since. Even if subsequent delays were not unlawful (for the reasons set out below, I have concluded that they were), the decision-making process was only initiated in December 2024 following an unlawful hiatus of 41 months (3 years and 5 months).

45. I will in any event go on to consider the other matters relied on by the applicant.

46. The next matter relied on by the applicant is the delay in allocating a caseworker, with the period in question running from 19 December 2024 until 24 February 2025. For the following reasons, I conclude that there was an unlawful delay.

47. First, this period cannot be entirely isolated from the unlawful delay which preceded it by virtue of the 2021 voiding decision. If it had not been for that previous delay, the applicant’s circumstances (including his immigration history and mental health vulnerabilities) would in all likelihood have been addressed and the matter allocated to an appropriate caseworker much earlier. That is not impermissible speculation on my part: as set out below, the respondent had possession of all relevant evidence relating to the applicant’s mental health from 2021 onwards.

48. Second, Mr Williams’ evidence does not make it clear when the “triaging” and seeking of “advice from senior management” took place prior to a safeguarding referral being made, nor when the referral was in fact made.

49. Third, I accept Mr Schymyck’s submission that in light of the applicant’s significant interactions with the respondent over the course of many years, it was in my judgment irrational for the respondent to have only seemingly become aware of his vulnerabilities (and therefore the need for safeguarding processes) in the middle of December 2024. Mr Williams’ confirmation that “It was not known to the Respondent at that stage that there would be any safeguarding requirements” does not rationally explain why that was the case, given the information which was, or should have been, before the respondent at the time.

50. Fourth, all of the above must be considered in the context that the respondent had set herself the “aim” of making a decision by 19 March 2025. Whilst I have concluded that there was no legitimate expectation in this regard (as to which, see below), it must nonetheless be presumed that she held a clear intention to meet that timeframe. As such, the decision-making process for the applicant’s further submissions would rationally have had to be tailored to meeting that target. On the evidence before me, the process did not rationally cater for the intended three-month timeframe: it effectively began from a standing start in December 2024 and, as previously stated, there is no clear evidence as to what steps were taken to ensure (or at least demonstrate best efforts) that the “aim” would be achieved. For reasons set out previously and below, the evidence I do have undermines the respondent’s contention that her actions from 19 December 2004 onwards were rational.

51. Sixth, in my judgment the respondent’s reliance on the applicant’s circumstances being particularly complex is indicative of the cause of at least part of the delay in this case. Aspects of those circumstances are undoubtedly complex, but, as I have mentioned previously, the further submissions related only to protection issues. They are focused and straightforward. There is in truth no real complexity in relation to those submissions: the applicant is at risk of persecution, or he is not; he is at risk of article 3 ill-treatment, or he is not; he is excluded from the protection of the Refugee Convention, or he is not; the further submissions constitute a fresh protection claim, or they do not. The criminal history is straightforward and has not changed since 2021. The Brook House Inquiry issue was always going to be irrelevant to the further submissions. The applicant’s mental health has been well-documented, albeit that the most recent substantive reports go back to 2021.

52. Sixth, in the absence of evidence of the internal safeguarding policy, the respondent’s reliance on that policy as a justification for delay during the period in question is significantly undermined.

53. By itself, this period of unlawful delay between December 2024 and February 2025 would not be sufficient for the applicant to succeed in this application for judicial review. However, in combination with what I have said previously at what I say subsequently, it is sufficient to make out the delay challenge.

54. The final matter relied on by the applicant in this part of his challenge is the period following the missed timeframe of 19 March 2025. Beyond the failure to have communicated the inability to meet the intended target, the relevant caseworker only contacted the applicant’s representatives on 10 April 2025, seeking confirmation that all of the relevant evidence was with the respondent. Further, at the time of preparing this judgment, the three-month target has now been missed by almost six weeks. I find that no rational reasons have been provided for this. Referring back to what I have said at [51], above, consideration of the further submissions themselves cannot rationally be considered as so complex as to justify the ongoing delay and the absence of evidence on the internal policy undermines the rationality of relying on that as a reason for further delay. Therefore, this final period of delay was also a result of the rational actions and/or inaction on the respondent’s part. Again, in isolation this would not be sufficient for the applicant to succeed overall, but when combined with my other conclusions, it is.

55. All-told, I conclude that the applicant has made out the first element of his delay challenge and this application for judicial review succeeds on that basis.

Delay by inaction
56. The test is undoubtedly high: is the delay is so significant that it is “manifestly unreasonable”?

57. In light of my conclusions thus far, the relevant delay has been since 19 July 2021 when the irrational voiding decision was made, a period of 3 years and 5 months. That is clearly significant. However, viewed in isolation from the other aspects of the applicant’s delay challenge, I conclude that it is not so significant in and of itself as to be “manifestly unreasonable”.

Detriment
58. On this aspect of the challenge, I agree with Mr Howarth’s submissions.

59. There is very limited recent medical evidence in relation to the applicant’s mental health. I have been referred to GP notes which confirmed that the applicant has depression and is prescribed appropriate medication. However, this evidence does not indicate that his current mental health has deteriorated, or that it remains poor, as a direct result of the delay in making a decision on his further submissions. The 2021 medical reports are now relatively old and are not of themselves sufficient to establish real detriment as of today. Further, I note reference to the applicant’s mental health having improved since being released from immigration detention. The applicant of course remains at liberty and has discretionary leave, in respect of which there will no doubt be an extension application in due course. The applicant has access to medical treatment and is not currently at risk of removal.

60. Mr Schymyck submitted that the delay had the effect of preventing the applicant from accessing the First-tier Tribunal by way of an appeal. That is speculative in the sense that it would depend on the respondent accepting that the further submissions constituted a fresh protection claim with an accompanying right of appeal. That outcome cannot be considered as a certainty, although it is in my view likely. In any event, there is no bad faith on the part of the respondent and there is nothing in the applicant’s particular circumstances which strongly points towards the need for a right of appeal to be exercised as a matter of urgency.

61. I conclude that taken alone or in combination with the simple passage of time from 19 July 2021 to date, the detriment argument is not made out.

Legitimate expectation
62. Whilst there is merit in the applicant’s submission that the respondent failed to provide proper justification for missing the three-month timeframe set out in the letter of 19 December 2024, the legitimate expectation argument fails at the stage prior to that issue. In my judgment, the applicant has failed to establish that the respondent made a clear and unambiguous promise in the first place.

63. I acknowledge Mr Schymyck’s submission that the test as set out in Re Finucane cannot be said too high. However, the use of the term “aim” in the respondent’s letter significantly detracts from the applicant’s contention that there was a clear and unambiguous promise. That term indicates a target or a desired outcome. It is not of the same quality as, for example, the term “will”, as used by Mr Williams at [14] of his witness statement and as could have been stated in the relevant letter.

64. This ground of challenge therefore fails.

65. For the sake of completeness and for reasons set out previously, I do not regard the reasons put forward by the respondent for failing to meet the “aim” of making a decision by 19 March 2025 as satisfactory. Mr Williams’ witness statement does not specifically address the “absent special circumstances” point. There had been no intervening events between the “aim” being stated in December 2024 and the expiry of the three-month timeframe which could not have been readily anticipated by the respondent at the outset. For example, the applicant’s mental health vulnerabilities were already well-documented and the respondent’s internal safeguarding policy was presumably known to her.

66. It is also of note that the respondent failed to inform the applicant in advance that the three-month timeframe would be missed. Without wishing to put too fine a point on it, the applicant’s poor mental health would have been better catered for if such a communication had been forthcoming.

Duty of candour
67. I acknowledge that the timeframe for preparation in these proceedings has been truncated by virtue of my decision to expedite the matter and order a “rolled-up” hearing. I appreciate that this state of affairs may have made it somewhat more difficult for the respondent to obtain and then provide relevant evidence. Having said that, the witness statement from Mr Williams was forthcoming. What has not been disclosed is the internal safeguarding policy relied on by the respondent to (at least in part) justify aspects of the delay in making a decision on the further submissions.

68. The policy document is relevant in these proceedings in so far as it has been relied on by the respondent. It may have assisted her position, or it may have undermined it. As Mr Schymyck put it, “we are all in the dark”. That is unsatisfactory. The policy should have been disclosed, or at least an explanation for its non-disclosure offered. Mr Williams’ witness statement does not address the point. It was in effect left to Mr Howarth to suggest how the policy might have operated in the applicant’s case. I mean no criticism whatsoever of Mr Howarth or his instructing solicitor, but that state of affairs should not have arisen.

69. I am satisfied that there has been a breach of the duty of candour in this case. Having said that, the breach is not of particular significance. The issue of the applicant’s vulnerabilities was addressed in Mr Williams’ witness statement (albeit, not the manner in which the policy interacted with those vulnerabilities) and the failure to have provided the policy did not prevent Mr Schymyck from putting forward cogent submissions on all aspects of the applicant’s challenge.

70. I make it clear that my conclusions on the substance of this case do not rely on a consideration of that policy. Mr Schymyck made it clear that he was not seeking to enforce its provisions in any way. In any event, I have course of not seen the policy and in that sense have had nothing before me to take into account.

Summary of conclusions
71. In summary, my conclusions are as follows:

(a) The delay between 19 July 2021 and 19 December 2024 was unlawful;

(b) The delay between 19 December 2024 and 24 February 2025 was unlawful;

(c) The delay between 19 March 2025 to date is unlawful;

(d) The delay has not been “manifestly unreasonable”;

(e) The delay has not caused the applicant detriment such as to render it unlawful;

(f) There was no procedural legitimate expectation and therefore no breach of any clear and unambiguous promise;

(g) There has been a breach of the respondent duty of candour.

Relief
72. By way of relief, the applicant seeks a declaration that there has been an unlawful delay and breach of legitimate expectation, an order requiring the respondent to decide the further submissions forthwith, and any other relief deemed appropriate. There has been no specific claim for damages.

73. On the limited basis set out earlier in this judgment, I consider it appropriate to make a declaration to the effect that there has been an unlawful delay in deciding the further submissions from 19 July 2021 to 19 December 2024 and then from 19 December 2024 to date (subject to a decision by the respondent being served on 1 May 2025, in line with the order given at the hearing).

74. In so doing, I acknowledge that there is no claim for damages in these proceedings and at first glance a declaration may be thought unnecessary. However, in the circumstances of this case, it is appropriate to recognise and acknowledge the respondent’s unlawful conduct.

75. I make no declaration respect of the claimed breach of a legitimate expectation.

76. I make no additional order in respect of the service of a decision on the further submissions.

77. There is no other relief which is appropriate in this case.

78. The parties are hereby invited to draw up an order which reflects the terms this judgment and the relief which I have outlined, above.

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