In the recent case of Zhou & Ors v Secretary of State for the Home Department [2024] EWCA Civ 81, the Court of Appeal has reaffirmed the threshold required for successfully challenging delays in the Home Secretary’s decision-making process. This case is a critical reference point for understanding the challenges and limitations of appealing against a refusal to grant permission for judicial review.
The complex journey of Mr Zhou and his family
Mr Zhou, along with his family, traversed a complex immigration path, culminating in an unsuccessful application for indefinite leave to remain in 2018. Despite being granted immigration bail, Mr Zhou’s journey took a turn when he was arrested under suspicion of money laundering in March 2021. Subsequently, he applied for leave to remain as a Tier 2 skilled worker in June 2021, only to face a deferral from the Home Secretary due to a mistaken record of an outstanding criminal prosecution.
Mr. Zhou’s attempt to legally challenge his detention led to a series of events marked by legal nuances and procedural complexities. The Home Secretary shifted their stance following a pre-action protocol letter, citing the case as involving “exceptionally complex issues.” Despite the National Crime Agency’s indication of an impending legal decision, Mr Zhou’s judicial review application faced refusal from the Upper Tribunal, which found the Home Secretary’s decision to defer lawful.
Court of Appeal’s Involvement
The case’s progression to the Court of Appeal brought forth two significant points: procedural and substantive. The procedural aspect revolved around whether the Court should re-hear the full application or merely review the Upper Tribunal’s decision. In contrast, the substantive points analyzed the implications of the ‘hostile environment’ and the consideration of Mr Zhou’s daughter’s best interests.
The Decision
The Court of Appeal concluded that the variation of Mr. Zhou’s Tier 2 application effectively reset the timeline regarding the delay issue. Furthermore, it agreed with the Upper Tribunal that the Home Secretary had the power to defer decisions in appropriate circumstances and that the deferment in Mr Zhou’s case was lawful, given the seriousness of the allegations against him.
This case highlights the aspect of challenging Home Office decisions based on delays. Despite a 4.5-year delay, the Court of Appeal found no grounds for unlawfulness. This decision underscores the need for careful consideration when contemplating judicial review applications, balancing the likelihood of success against the time and costs involved.