Jawad v Secretary of State for the Home Department

The Claimant is an Afghan national who was born on 27 August 1990. On 15 November 2005, when the Claimant was aged 15, he arrived in the United Kingdom and claimed asylum. He was given temporary admission and notified that he should report to an Immigration Officer on 25 November 2005.

On 25 November 2005 the Claimant was subject to a screening interview. Thereafter, he was granted temporary admission to remain in the United Kingdom until 28 August 2008 – the date of his 18^th birthday.

In December 2005 the Claimant supported his claim for asylum by submitting a statement of evidence and a document entitled “Statement of Additional Grounds” to the Defendant.

On 5 April 2006 the solicitors then acting for the Claimant wrote to the Defendant alerting the Defendant to the fact that there had been no response to the documentation supplied in December 2005. The solicitors reminded the Defendant that the Claimant was an unaccompanied minor, then in the care of Social Services. No reply was received to that letter. On 22 June 2006 the solicitors wrote a reminder to the Defendant. No reply was received. Further reminder letters were sent on 8 August 2006 and 21 November 2006.

On 15 February 2007 Ms Lynne Graham, an employee within the Education and Children’s Services Department of Solihull Metropolitan Borough Council (hereinafter referred to as “SMBS”) wrote to the local MP eliciting his assistance in order to persuade the Defendant to determine the Claimant's asylum claim.

On 26 April 2007 the Defendant invited the Claimant to an interview on 16 May 2007. The letter constituting the invitation contained the following information:

On 10 May 2007 Ms Jill Eley, a Children’s Rights Advocate employed by NSPCC wrote to the Defendant requesting that the Claimant be allowed the right to work.

The Claimant attended for interview as requested on 16 May 2007. It is to be observed that the Claimant was not accompanied at that interview by any legal representative although he was accompanied by his social worker. No legal representative was arranged because although the Claimant was personally notified of the interview the Defendant did not notify the social worker separately with the consequence that by the time she became aware of the interview no representative could be arranged.

In the months that ensued the Claimant's solicitors and the Social Services Department of SMBC wrote on a number of occasions to the Defendant asking for an update in the progress of the Claimant's asylum claim.

On 14 July 2008 the Claimant’s current solicitor wrote a letter before action to the Defendant. On 7 August 2008 Ms Graham of the SMBC wrote to the Claimant's solicitor as follows:-

No doubt fuelled by this letter and the lack of a response to the pre action protocol letter these proceedings were commenced by a claim form issued on 22 August 2008. The claim sought to impugn the Defendant's failure to make a decision upon the Claimant's asylum claim; the relief sought was a mandatory order compelling the Defendant to make a decision on the claim without further delay and in accordance with the law and policy.

On 19 September 2008 the Defendant wrote to the Claimant inviting him to withdraw these proceedings on the basis the claim for asylum would be considered within three months. The Claimant did not respond to this offer. However, before the issue of permission could be considered the Defendant considered and determined the Claimant's asylum claim.

The claim was considered by an employee of the UK Border Agency, Mr Mark Barlow, acting on behalf of the Defendant. Mr Barlow considered whether the Claimant's claim to asylum should be accepted and/or whether the Claimant qualified for a grant of humanitarian protection in accordance with paragraph 339C of the Immigration Rules. Mr Barlow determined that the claim for asylum should not be accepted and that humanitarian protection should not be afforded to the Claimant. He went on to conclude that the Claimant's removal from the United Kingdom would not be contrary to the United Kingdom’s obligations under the European Convention on Human Rights.

As was his right, the Claimant appealed against Mr Barlow’s decision to the Asylum and Immigration Tribunal. His appeal was heard on 3 February 2009 in Birmingham. On 4 February 2009 the Claimant served amended detailed grounds for seeking judicial review. He claimed that the Defendant's failure to determine the asylum claim within a reasonable time had been unlawful. He further alleged that, as a consequence, the court should make an order directing the Defendant to grant the Claimant discretionary leave to remain in the United Kingdom and also make an award of damages.

On 16 February 2009 Immigration Judge Hobbs promulgated a determination of the Claimant's appeal to the AIT. The Immigration Judge determined that the Claimant was not entitled to asylum; further he was not entitled to be granted humanitarian protection and his removal from the United Kingdom would not be a breach of Articles 2, 3 and/or 8 of the ECHR.

On 26 February 2009 Senior Immigration Judge Storey made no order on the Claimant's application for reconsideration of Immigration Judge Hodge.

On 18 March 2009 the Defendant served an Acknowledgement of Service and summary grounds of defence. The summary grounds of defence responded to the Claimant's amended grounds dated 4 February 2009.

On 12 May 2009 Mr Christopher Symons QC sitting as a Judge of the High Court, dismissed the Claimant's application for reconsideration of the decision of Senior Immigration Judge Storey.

On 2 September 2009 HHJ Pelling QC, sitting as a Judge of the High Court, refused permission to apply for judicial review. On 5 October 2009 the Claimant renewed his application for permission to apply for judicial review. His grounds for renewal were settled by Mr Bedford.

The renewed application for permission came on before HHJ Oliver-Jones QC, sitting as a Judge of the High Court, on 27 November 2009. He granted the Claimant permission to proceed with his claim for judicial review on all of the grounds specified in the amended grounds of 4 February 2009.

In the proceedings before me three issues were canvassed. First, was the delay in determining the Claimant's application for asylum unlawful? Second, if so, should the court grant Discretionary Leave to Remain or direct that the Defendant do so? Third, was the court entitled to award damages for unlawful delay?

I deal with each of these issues in turn.

An appropriate starting point for the investigation of this issue is the following extract from the recent decision of the Court of Appeal in MK (Iran) v Secretary of State [2010] EWCA Civ 155. In his judgment in that case Carnwath LJ had this to say about the issue of delay:-

It was not in dispute that, at least under domestic law, the Secretary of State was under a public law duty to decide the asylum application within a reasonable time. Both parties, as I understood them, accepted what I said in Home Secretary v S [2007] EWCA Civ 546 at para 51:

“The Act does not lay down specific time limits for the handling of asylum applications. Delay may work in different ways for different groups: advantageous for some, disadvantageous for others. No doubt it is implicit in the statute that applications should be dealt with within ‘a reasonable time’. That says little in itself. It is a flexible concept, and having scope for variation depending not only the volume of applications and available resources to deal with them, but also on differences in the circumstances and needs of different groups of asylum seekers. But (as was recognised by the White Paper) in resolving such competing demands fairness and consistency are also vital considerations.”

Although the concept is flexible, and the dividing line may often be not easy to define, in this case the position seems to me to be reasonably clear…..

At the time he made his application for asylum the Claimant was 15; he was also an unaccompanied minor. By the time his claim for asylum was determined he was aged over 18. During the period of 3 years which followed the application for asylum and when he was a minor the Claimant was cared for under the auspices of the Social Services Department of SMBC.

During this 3 year period solicitors acting on behalf of the Claimant regularly reminded the Defendant that the Claimant's asylum claim was outstanding. From time to time there was intervention by an officer of SMBC; the local MP was also asked to intervene. There is no conclusive evidence that he did so; however, that seems likely given that the Defendant offered the Claimant an asylum interview shortly after the MP’s intervention had been sought.

The Defendant has adduced no evidence in this case. She does not seek to explain or excuse the period of delay. I find it very difficult to accept that the Claimant’s asylum application was determined within a reasonable time.

The Trial Bundle contains a document issued by or on behalf of the Defendant entitled “Processing Asylum Applications from Children”. It suffices for present purposes that I refer to two pages of the document which are headed “Process map” and which envisage that an application for asylum made by a child should be determined within 35 days of the application being made. This document was published on 7 March in 2007. However, I also understand that Mr Kimblin, on behalf of the Defendant, accepts that even at the time when the Claimant made his application for asylum the Defendant’s instructions to her case workers was as encapsulated in the “Process Map” to which I have just referred. In any event, it has not been suggested that as from 7 March 2007 the Defendant did not have a policy whereby claims for asylum made by minors should be determined within 35 days.

Where the Defendant fails to act in accordance with her published policy and where, particularly, that failure is wholly unexplained by evidence a court is normally persuaded that the Defendant's failure is unlawful. In AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12 Keene LJ said

Despite the length of the delay in this case, the fact that the Defendant failed to determine the Claimant's asylum application in accordance with her published policy and, further, despite her failure to explain the delay or why she did not act in accordance with her policy, Mr Kimblin does not accept that she has acted unlawfully. He invites my attention to two decisions, in particular, in support of that submission: they are R (FH & Others) v Secretary of State for the Home Department [2007] EWHC 157 (Admin) a decision given by Collins J on 5 July 2007; the other is R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546, a decision of the Court of Appeal given on 19 June 2007. I deal with each of those decisions in turn.

FH & Others were 10 cases heard together. In each case it was alleged that the Defendant had failed to decide upon an application to be allowed to remain in this country within a reasonable time. Each of the cases brought by the Claimant's were described as incomplete asylum cases. That phrase was used to encompass the situation where an initial decision had been made on a claim for asylum and rejected and the application to be allowed to remain in this country was a subsequent application. There was said to be a fresh claim based upon further evidence or circumstances which were said to justify a fresh consideration of the application. There was some variation from this basic case type. In one case the initial asylum claim had been refused but there had been a grant of Discretionary Leave to Remain on humanitarian grounds; in that case the application which was the subject of the proceedings was to extend the Discretionary Leave. In a second case the initial refusal had taken place before the coming into force of the Human Rights Act 1998; accordingly, there had been no consideration of a human rights claim. In two cases the Asylum and Immigration Appeal Tribunal (or its predecessor) had upheld the decision to refuse asylum but had allowed appeals under Article 8 of ECHR which had resulted in the grant of periods of Discretionary Leave which the individuals in question were applying to extend.

None of the cases under considered by Collins J involved a Claimant who had been an unaccompanied minor at the time of his application for asylum and whose claim for asylum had been determined years after the Defendant’s published policy suggested it should have been.

The delays considered by Collins J covered a minimum of about 2 years and a maximum of about 5. The Defendant adduced substantial and detailed evidence to explain why the delays had occurred.

Collins J rejected each claim. He accepted that there was an obligation upon the Defendant to determine applications within a reasonable time but he held that a reasonable time had not elapsed in each case. He concluded:

The judgment of Collins J is specific to the type of claims which he was considering. He makes it clear in his judgment that a distinction is to be drawn between incomplete asylum claims and initial claims. Further, as I have said, none of the claims before Collins J involved unaccompanied minors and none involved cases in which the Defendant had failed to apply its own policy in relation to the determination of claims. I am not persuaded that the decision in FH & Others or any statement of principle contained within it precludes a finding in the instant case that the Defendant’s failure to determine the claim for asylum for more than 3 years after it was made was unlawful.

I turn to the decision of the Court of Appeal in S. In that case the Claimant was a citizen of Afghanistan. He entered the United Kingdom in September 1999 at the same time as his cousin (HM). They both applied for asylum on 17 September 1999.

The Claimant's asylum application was not determined until 16 March 2004 when it was refused. An appeal to an adjudicator against that refusal was rejected in June 2004.

On 11 October 2004 S applied for Discretionary Leave to Remain in the UK. This was refused on 3 November 2005. The letter of refusal also certified that the matters on which he relied could have been raised before the adjudicator with the consequence that there was no right of appeal against the refusal. On 25 November S’s solicitors submitted a statement from his girl friend who was a married woman and a British citizen. The contents of her statement were said to justify the grant of Discretionary Leave to Remain in the United Kingdom. That application was refused on 2 December 2005. In December 2005 S commenced proceedings for judicial review of the decisions of 3 November and 2 December 2005.

The sequence of events involving S’s cousin were markedly different. The application for asylum made by HM was refused on 16 February 2002; however, he was granted exceptional leave to remain on that date. Subsequently, he was granted indefinite leave to remain.

During the period when S’s application for asylum was under consideration there were two significant policy developments. First, in January 2001, targets set by a “public service agreement” had the effect that (unknown to S) older asylum applications such as his were “put on hold”, in order to meet targets on new applications. Second, in November 2001 and April 2002 there were changes in the policy towards Afghan asylum seekers, following the removal of the Taliban régime.

In the course of his judgment Carnwath LJ identified two issues which are of relevance to the instant case. He categorised those issues as i) the relevance of delay on its own; ii) abuse of power.

In relation to the issue of delay on its own Carnwath LJ focused his observations upon those types of cases in which delay in handling an asylum application is relied upon in support of a claim for interference with private life under Article 8 of the EHRC. Having referred to principles formulated by Buxton LJ in HP & Others v Secretary of State [2006] EWCA Civ 1713 Carnwath LJ summarised the position by saying that the general principle is that mere delay will not normally improve an Article 8 case although exceptional circumstances might justify a different view.

The section of the judgment of Carnwath LJ which deals with abuse of power is detailed. It contains a close analysis of the earlier decision of the Court of Appeal in R (Rashid) v Secretary of State [2005] EWCA Civ 744. It is unnecessary to set out substantial extracts from the judgment. It suffices for me to identify that Carnwath LJ accepted that if serious administrative errors on the part of the Defendant result in conspicuous unfairness amounting to an abuse of powers the administrative errors can properly be categorised as illegal and that in those circumstances the court is empowered to give such relief as it properly can. Moore-Bick LJ and Lightman J agreed with the judgment of Carnwath LJ.

In my judgment, the instant case is not a case of mere delay. First, it is a delay which is in breach of published policy. Second, there is no dispute but that it had the disadvantageous consequences which were set out, graphically, in the letter from Ms Graham of SMBC dated 7 August 2008 – see paragraph 10 above.

It also seems to me that the Claimant suffered a disadvantage not identified by Ms Graham. Had his asylum application been considered while he was a minor and assuming that it was refused the probability is that the Claimant would have been granted leave to remain in the United Kingdom until his 18^th birthday. That being so it would have been open to him to apply for a variation of his leave provided he did so before he was 18. If his application for variation had been refused it would have attracted an in-country right of appeal.

Mr Bedford submits that there was a further disadvantageous consequence of the delay in this case. He submits that the delay which occurred made it much less likely that the appeal against the refusal of the asylum claim would be upheld. Mr Bedford points to the fact that Immigration Judge Hobbs rejected the claim for asylum on the basis of adverse credibility findings. In paragraph 19 of his Determination Immigration Judge Hobbs explained the basis of those findings. There can be no doubt that part of his reasoning relates to what he calls “the embellishment of the Appellant’s claim as time has gone by.” The Immigration Judge also relied upon inconsistencies in the Claimant's account which, no doubt, were easier to expose given the length of time which had elapsed.

All that said, I am not persuaded that it has been demonstrated that there was a real possibility that the result of the asylum appeal would have been different had an appeal been heard in, say, the summer of 2006 as compared with February 2009. The Immigration Judge made many points about the Claimant’s credibility; many of those would probably have been made whenever the appeal had taken place.

In summary, I am satisfied that the claim for asylum was not determined within a reasonable time. Had the Defendant complied with her own policy (even after March 2007) the application would have been dealt with much earlier. The consequence of the delay on the part of the Defendant was that the Claimant suffered conspicuous unfairness. I have no doubt that by the time these proceedings were commenced a judge of the Administrative Court would have granted a mandatory order to compel the determination of the asylum claim had not the Defendant removed the need for the making of such an order by reaching a decision on the Claimant's asylum claim. Further, I am satisfied that such a mandatory order would have been made, if sought, long before the issue of proceedings in this case. Doing the best I can my view is that such an order would have been made any time after 12 months had elapsed from the making of the application on the grounds that by then a reasonable time for the making of a decision had passed and the Claimant was suffering conspicuous unfairness.

The Claimant's case in relation to damages did not crystallise until Mr Bedford served a response to the Defendant's skeleton argument. Mr Bedford's response is dated 11 May 2010 but it was not served until 13 May 2010. The hearing in relation to this claim took place on 14 May 2010. It became clear to me, during the course of oral submissions, that Mr Kimblin needed further time to consider the issue of damages. Accordingly, I directed that the parties should make further written submissions on the issue.

For reasons which are not readily explicable those written submissions did not reach me until 12 July 2010. It is clear, however, that counsel prepared the submissions within the time limits laid down by me.

Accompanying the written submissions was a letter from the Treasury Solicitor to the Claimant's solicitor dated 10 June 2010. It reads as follows:-

“Further to the ongoing current proceedings I have instructions from my client to offer the following undertaking:

The SSHD will consider any application for Discretionary Leave which your client wishes to make following the conclusion of this judicial review so long as that application is made within one month of the date on which judgment is handed down.

The SSHD will determine any such application for Discretionary Leave made by your client within 3months of the date it is received by the SSHD, absent exceptional circumstances. This undertaking is offered without any admission whatsoever in respect of any ground of the Claimant's judicial review claim.”

In the light of that open letter I do not consider it appropriate to consider the second issue which I identified in paragraph 21 above in any detail. By the close of the oral submissions it appeared to be the case that it was accepted by Mr. Bedford that I had no power to grant discretionary leave to remain in this country. In his written submissions of 9 June 2010 Mr. Bedford appears to resile from that view. However, I take the view that the appropriate relief in this case (apart from the issue of damages) will be afforded to the Claimant if the court accepts the undertaking offered by the Defendant. Upon the handing down of the judgment an order will be made which will incorporate the undertaking which I have set out above.

The only issue which requires further consideration by me, therefore, is the alleged entitlement to damages.

In MK (Iran) the following argument (made by Mr Bedford who was counsel for the Claimant in that case ) was presented on behalf of the Claimant:-

In this case, Mr Bedford accepts that I am bound to follow that aspect of the decision in MK (Iran).

On 23 April 2010 the Court of Appeal handed down its judgment in HH and others (Somalia) v Secretary of State for the Home Department [2010] EWCA Civ 426. Mr Bedford relies upon paragraphs 80 to 84 of that judgment. He acknowledges, as he must, that the views expressed in those paragraphs are obiter. Nonetheless he submits that they are likely to be very persuasive for a judge at first instance. The paragraphs are as follows:-

For the purposes of the present appeals, we do not need to determine the issues raised by Mr Scannell’s submissions. What we will say is obiter. However, we do foresee that these issues will have to be decided at some stage, probably in the near future and possibly by a reference to the ECJ; accordingly we propose to give a tentative view about them.

It appears to us that the intention of the Qualification and Procedures Directives is to require a member state to make a decision on entitlement within a reasonable time of the application and to allow the issues raised in it to be subject to an appeal. We do not consider that the fact that an appeal from removal directions is by way of judicial review rather than statutory appeal, is, of itself, an insuperable objection. But we do think that, in a case in which the Applicant raises a cogent argument within his statutory appeal that there may not be a safe route of return, the Secretary of State must address that question and the issue must be considered as part of the decision on entitlement. Postponement of such consideration until the Secretary of State is in a position to set safe removal directions would effectively be to postpone the decision until the cessation provisions have come into play.

We also consider that it is the intention of the Qualifications Directive that all matters relating to safety on return should form part of the decision on entitlement. Article 8 envisages that a person may properly be returned to his country of origin if only part of it is safe. It excludes ‘technical obstacles to return’ from the determination of entitlement. On its face, however, this provision has to do principally with internal relocation, which makes it difficult to derive any general proposition from it about the Directive as a whole or as to what the Directive envisages as to safety during return. It gives some modest support to the suggestion that what Mr Thomann calls ‘the mechanics of return’ are not intended to form part of the case for protection. But not much support – for it starts with the words “As part of the assessment of the application for international protection….” Nevertheless, its first paragraph treats the availability of internal relocation as a factor negating any need for protection, and its third paragraph excludes from this calculation any “technical obstacles to return to the country of origin”.

Leaving aside the mysterious verb “stay” at the end of the first paragraph, suggesting as it does that the Applicant is already there but probably meaning “go to and remain in”, there remains a question about what constitute “technical obstacles” to return. In our view these are probably confined to administrative difficulties such as documentation; they may include physical difficulties such as the lack of return flights; but the phrase does not readily signify a requirement to ignore risks to life or limb once the returnee is back in the country of origin, no only because it does not say so – it speaks only of return to the country of origin – but because to do so would be to permit the very thing that the Directive is designed to prevent, refoulement to a situation of real danger. Our view is that the mere fact that technical obstacles are excluded from consideration suggests that issues of safety during return are to be considered.

In conclusion, our provision view is that the Directives read together require that the issues of safety during return (as opposed to technical obstacles to return) should be considered as part of the decision on entitlement. Only technical obstacles of the kind we have sought to identify may legitimately be deferred to the point at which removal directions are being made or considered. We are aware that the entitlements which appear to follow may be considered an unintended consequence of the Directives; but this, as we have said, is an issue for another day. Our provisional view, in the light of the Directive, is that if there is a real issue on safety on return the Secretary of State must engage with it in his decision on entitlement to protection, and his conclusion can be the subject of appeal. In any case in which the Home Secretary did not deal with safety during return (because he did not consider that any issue arose) but where the Appellant raises a cogent argument that there might not be a safe route of return, the appeal tribunal would have to deal with that issue, possibly after calling for information from the Home Secretary as to his intentions. In any event, as it seems to us at present, the decision on entitlement must be taken within a reasonable time and cannot be left until the Home Secretary is in a position to set safe removal directions.”

It is also significant in my view that there is now separate European legislation governing the timing of the consideration. That is to be found in Council Directive 2005/85/EC (“the Procedures Directive”) which sets minimum standards for procedures for granting refugee status. Article 6(2) says that Member States shall ensure that each adult having legal capacity has the right to make an application for asylum on his or her own behalf. Article 23 (“Examination Procedure”) requires Member States to handle applications for asylum in accordance with the principles set out in the Directive and to ensure that the procedure is concluded “as soon as possible without prejudice to an adequate and complete examination”. Where a decision cannot be taken within six months, the Applicant concerned must be informed of the time by which the decision is expected to be given, but:

“Such information shall not constitute an obligation for the Member State towards the applicant concerned to take a decision within that time frame.””

This Directive was not in force at the time that the Claimant made his application for asylum in this case. Mr Bedford, therefore, concedes that it can have no application to his case.

Accordingly, Mr Bedford is constrained to submit that the acknowledgement of the court in HH (Somalia) that a claim for asylum must be determined within a reasonable time to comply with European law derives solely from the Qualification Directive.

I cannot accept that submission. There are two short reasons. First, paragraphs 80 to 84 read as a whole strongly support the view that the court in HH (Somalia) considered that the obligation in European law to determine an application for asylum within a reasonable time was derived from both Directives. Second, in any event, it seems to me that it is the wording of the Procedures Directive rather than the wording of the Qualification Directive which gives most support for the proposition that the obligation to determine an application for asylum within a reasonable time arises under European law.

Accordingly, I take the view that Mr Bedford cannot establish that at the time the Claimant made his application for asylum there was an obligation arising under European law to determine it within a reasonable time.

On that basis Mr. Bedford acknowledges that the claim for damages must fail.