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More Delay: Upper Tribunal considers delay in Home Office decision-making

In two earlier blog posts  we examined how quickly an individual can expect an application to be decided, current visa processing times and the approach to delay.  

Further Legal Developments

The Upper Tribunal recently dealt with an asylum case  involving delay. R (on the application of TM (A Minor) by his litigation friend, The Official Solicitor) v Secretary of State for the Home Department (Minor – asylum – delay) [2018] UKUT 299 was heard in August this year.

The Tribunal found:

“In considering whether the delay in determining a person’s (‘P) asylum application is unlawful all the circumstances must be considered in the round including, inter alia: length of delay; whether P was a minor at the date of his application; whether P continues to be a minor; if a minor, P’s best interests; the complexities of the claim; the explanation provided by the SSHD and resource allocation; compliance with timeframes provided; the impact of delay on P”.

The Applicant had challenged the Respondent’s ongoing delay in making a decision regarding his claim for asylum.  The original application was made on 28 October 2016 in the UK, when the Applicant was residing with his Uncle. This case involved a 17 year old asylum seeker from Afghanistan who was due to be heard under the “expedited process”.  The process was established between the UK and French authorities in October 2016. This Applicant had entered the UK following the clearing of the camps in Calais.   

The Tribunal recognised at paragraph 30 that “There are no specific time limits within which the Respondent must reach a decision on an asylum case. His obligations about the time in which decisions must be made on asylum claims are to be found in Immigration Rule 333A”  Rule 33A states: “The Secretary of State shall ensure that a decision is taken on each application for asylum as soon as possible, without prejudice to an adequate and complete examination”.

In terms of the length of delay, the Upper Tribunal Judge found at paragraph 63: “I do not accept Mr Jacobs’ submission that six months is an appropriate benchmark or provides an “indicative timescale” in every asylum case”.  In this case at paragraph 65: “Doing the best I can, a reasonable period of time to decide the Applicant’s outstanding asylum application would have been 56 days after June 2017. By June 2017, the Applicant had been subjected to a detailed asylum interview and his solicitors had submitted all the information and evidence necessary for there to be an “adequate and complete examination” of the asylum application”.  The Respondent accepted the Applicant was a minor and was a minor at all material times.  

In respect of the best interests of the child, the Upper Tribunal Judge recognised that there is a “requirement in the cases of children asylum applicants to make “every effort” to deal with their applications in ” a timely way” that ” minimises the uncertainty they may experience”- see 2.7 and 3.20 of the statutory guidance”, paragraph 68.

As set out at paragraph 71 it was accepted there was no complexity in the Applicant’s case and at paragraph 76 the Upper Tribunal Judge found: “I can conceive of no obvious reason why ” the particular and highly unusual circumstances of the closure of the Calais camp” in October 2016 and the fact that this Applicant was part of a cohort initially transferred under the “expedited process” has the consequence of making the determination of his substantive asylum claim complex”.

The Tribunal considered the particular circumstances and impact on the Applicant and for those reasons found the delay  “as meeting the high threshold of irrationality or Wednesbury unreasonableness”, per paragraph 84.  The Tribunal considered a number of factors relevant to the Applicant’s circumstances  before reaching a final conclusion.

Continued Delay

It remains important that individuals can seek the protection of the courts and to be able to challenge the lack of decision making and impact of delay.  

Delay continues to be experienced by many and is regularly reported in the media.  Only recently The Independent reported that Home Office delay had almost doubled.  The Independent reported data obtained through a freedom of information request.  The report details personalised accounts from individuals who have been significantly and emotionally affected by delay in determining their applications with devastating consequences.  

Contact our Immigration Barristers

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