MK (Iran), R (on the application of) v Secretary of State for the Home Department

This is a renewed application for permission to appeal against the order, dated 18 December 2008, of Cranston J, dismissing the appellant’s application for judicial review of the respondent’s refusal or failure to determine his asylum claim within a reasonable time. The appellant sought, among other remedies, a declaration that the respondent’s refusal or failure was unlawful, a declaration that he was a victim of the respondent’s unlawful act under the Human Rights Act 1998, and damages for loss caused by the breach of his rights under the 1998 Act. The appellant applied for permission to appeal on 9 grounds. Moses LJ granted permission to appeal on three of those grounds: 2, 3 and 6, observing:

“The appellant must focus his case with greater precision. He does have a reasonable chance of establishing that the judge underestimated the gravity of the delay between 2004 to 2006 and that the judge was not entitled to conclude that the exacerbation of the effect of the reasonable delay in 2004-2005 by the delay in 2006 was [not] unreasonable. In 2006, the evidence appears to show that, contrary to the judge’s conclusion, he would have been able to give an account at interview and before a tribunal (a window of lucidity between February 2006 and June 2007).”

Grounds 2, 3 and 6 deal, amongst other matters, with the lawfulness of the delay in dealing with the appellant’s application. Ground 6 challenges the judge’s finding in paragraph 31 of his judgment that the appellant would not have had a better opportunity to advance his asylum claim had its examination been completed in 2006, and contends that that finding is unsustainable on the medical evidence. In this renewed application Mr Bedford seeks permission to appeal on grounds 4, 5, 8 and 9. Grounds 1 and 7 are no longer pursued. Grounds 4 and 5 run together. In ground 4 it is contended that Cranston J erred in failing to hold that the appellant’s asylum claim was a civil claim for the purposes of the 1998 Act, and in ground 5 it is contended that the appellant is entitled either to compensation for breach of that civil right and/or to damages under community law for breach of a directly enforceable right under the Dublin 2 regulation. Grounds 8 and 9 are premised on the correctness of grounds 4 and 5 that the appellant is entitled, in principle, to compensation or damages for breach of a civil right and/or impliedly under EU law, and they challenge the judge’s conclusions on causation in paragraph 31.

Very briefly, the appellant entered the United Kingdom in September 2004 and claimed asylum. In December 2004 he was able to, and did, give his account of events in Iran to his solicitor. In October 2005 the appellant was sectioned under the Mental Health Act. He was discharged in February 2006 as “extremely well and mentally stable”. In early 2006 the appellant’s solicitors wrote to the Secretary of State saying that the delay in deciding his application for asylum was having a detrimental effect on his mental health. Further chasing letters were sent by the appellant’s solicitors in May, June September and December 2006. In January 2007 a social worker noticed a deterioration in the appellant’s condition, and by mid 2007 the appellant’s consultant psychiatrist said that the appellant’s condition was such that he was not able to give an account of himself or to answer questions. In October 2007 further deterioration was noted. The appellant’s asylum interview took place in early April 2008. According to the appellant, he was unable to answer any questions. His claim was dismissed and an immigration judge rejected his appeal on 5 August 2008. Cranston J summarised the appellant’s case on the facts as follows:

“Mr Bedford says that if the claimant had been able to advance his claim in calendar year 2006, when the medical evidence demonstrated that he was still reasonably competent, it might well be that he would have been able to found a successful claim. Because he lost the opportunity to have his asylum claim determined during that period and that gives rise to a claim for damages […] In all, Mr Bedford’s argument is that this claimant’s case is exceptional. It should have been determined at least by the end of 2006, when he was reasonably well mentally. Instead, it was determined earlier this year when he was mentally unfit and unable to give evidence.” (Paragraph 30)

Cranston J said in paragraph 31 of his judgment:

“In my view, the argument falls down at the very least on causation. There is the medical evidence, which I referred to earlier, which demonstrates that in 2006 the claimant was reasonably competent but there was a subsequent deterioration. But the fact is that in 2005 the claimant had been sectioned under the Mental Health Act. So even if the matter had been handled more expeditiously, so that he had his asylum interview and hearing before the end of 2006, there is no guarantee that the account which he was able to give to his solicitor in December 2004 would have been capable of being advanced by him at that point. The medical evidence seems to me to indicate that the claimant has fluctuated over the period since he arrived in the UK in terms of his mental condition. The clamant has not been helped by what I find to be, on the Home Office Evidence, a failure on his part to report when required to do so. Given the claimant’s mental condition in 2005, and the finding of the Immigration Judge that his mental condition was not caused by the delay, it seems to me that the claim for damages for any lost opportunity or otherwise does not arise on the facts of this case.”

Looked at in isolation, grounds 8 and 9 are reasonably arguable because, as Moses LJ said when granting permission to appeal, “there was a window of lucidity between February 2006 and June 2007”. It is not clear whether Cranston J was concluding that the appellant’s failures to report contributed to the respondent’s delay in determining his application, but that was certainly a part of the respondent’s case before the judge. According to the respondent’s evidence, the appellant had failed to report on a number of occasions. At least some of those occasions were in 2006, during the “window of lucidity”. According to the witness statement of Mr Nelson, an executive officer in the Border and Immigration Agency, a screening interview had been arranged for 5 March 2006. The appellant did not attend. The appellant also failed to report on 20 March, 20 April and 20 August 2006 to the Midlands Enforcement Unit. However, he did report on 20 May, 20 June, 20 July, 20 September and 20 October 2006. His appointment to report on 20 November 2006 was cancelled. It seems that alternative arrangements were to have been made for his screening interview according to the respondent’s records on 5 July 2006, but a few days later the appellant’s case was put into WIPS (work in progress storage), which in practice meant that it fell within the legacy policy; and was given no priority so that the interview was not arranged until April 2008.

It seems to me that any failures to report in 2005 and 2007 did not, at least arguably, contribute, or materially contribute, to delay, and in any event on the appellant’s case were due to his mental condition. It is not at all clear that the failures to report to the enforcement unit in 2006, during the “window of lucidity”, had any contributory effect in terms of delay because interviews had not been arranged on those days. The long and short of it would appear to be that the appellant did not attend one interview in 2006. Another was to have been arranged, but in the event it was not. It is, in my judgment, at least arguable that no satisfactory explanation was given as to why it was not possible to rearrange an interview in 2006, given the number of occasions on which the appellant was attending the enforcement unit. It is also arguable that Cranston J’s reliance on the immigration judge’s conclusion that the appellant’s mental condition was not caused by the delay is flawed, because on the appellant’s case, by the time he appeared before the immigration judge, his mental condition was such that he was unable effectively to present his appeal. Therefore, in my judgment, grounds 8 and 9, which, coupled together with ground 6, are a challenge to the judge’s conclusions on causation at paragraph 31, do have a real prospect of success. I say this because if there had been no real prospect of success on the question of causation there would have been no point in considering the grant of permission to appeal on grounds 4 and 5 because the points of law raised in those grounds would have been academic on the facts.

It is right to say, and Mr Bedford fairly acknowledges, that the appellant does face a number of difficulties in establishing his contention in ground 4 that his right to asylum is a civil right, and his further contention that there is a directly enforceable right under EU law by virtue of Dublin Regulation 2. To make those submissions good, Mr Bedford will have to distinguish a number of decisions including the decision of the European Court of Human Rights in Maaouia v France. Those decisions are referred to in paragraph 19 of the judgment of Cranston J. Mr Bedford submits that there is a real prospect that he will be able to do so, because under the qualification directive the grant of refugee status is mandatory, whereas the earlier decisions, to the effect that the right to claim asylum does not engage article 6, were concerned with the grant of asylum as a matter of administrative discretion. Mr Bedford submits in the alternative that, unlike Dublin 1 which did not confer rights on individuals but regulated relations between the member states, Dublin 2 regulation does confer directly effective rights on individuals. The question is whether there is a real prospect of success in respect of these arguments.

To an extent that question has already been answered. In the case of HH (Iran) v SSHD [2008] EWCA Civ 504 the question arose whether HH, who had not been legally represented at his asylum appeal and whose appeal had been dismissed, could contend that the determination of his appeal was a determination of his civil rights. Sir Henry Brooke granted permission to appeal, Longmore LJ observing that it was no doubt for the reason that Sir Henry Brooke recognised that:

“This is an important point which requires an authoritative ruling from the Court of Appeal as contended in the appellant’s grounds.”

The arguments are set out in paragraphs 13-15 of the judgment of Longmore LJ in HH. He said in paragraph 16:

“The interesting argument put before the court by Mr Bedford was to the effect that before that Qualification Directive no legal right to asylum existed in English law at all and that decisions that Article 6 therefore did not apply were understandable. Now, however, he says, there is a right to individuals in European Union law to claim asylum and so Article 6 must apply. That would of course be an important point to determine if the application of the Convention were to make any difference on the facts of this case, so the question is whether this appeal, if the Convention applies, would be decided differently from the way it would be decided in a domestic context.”

The Court of Appeal’s answer to that question was no, it would not be decided differently if the convention applied, so the important point of principle did not arise. Nevertheless, it seems to me that it has been recognised that the point raised in the appellant’s ground 4 is properly arguable, and in an appropriate factual context it is an important point which undoubtedly should be resolved by the Court of Appeal. For these reasons I grant permission on grounds 4 and 5 and 8 and 9. It seems to me that, insofar as ground 5 relies on the alternative argument, based on the distinction between Dublin 1 and Dublin 2 it also is properly arguable. As a consequence of that extended grant of permission, the time estimate, which is one day, should in my judgment be extended to one-and-a-half to two days.