Mambakasa, R (On the Application Of) v Secretary of State for the Home Department

A successful asylum appellant has a right, or legitimate expectation, that refugee status and consequential leave will be granted without unreasonable delay. The statutory period governing asylum support is not itself a deadline for granting status, but is a relevant indicator of reasonable administrative timing. Domestic unlawfulness does not automatically establish an interference with family life under Article 8. Delay in facilitating family reunion must be assessed separately, by asking whether it involved a lack of effective respect for family life. In this case, systemic delay and repeated administrative errors made the status delay unlawful, but the overall circumstances did not establish an Article 8 breach. The entry-clearance authorities were entitled to require passports or other documents establishing identity and nationality, subject to any waiver.

The claimant, an Angolan refugee, succeeded in an asylum appeal before the Immigration Appeal Tribunal. There was a delay of about six months before formal refugee status and indefinite leave to enter were issued. His family later obtained entry clearance, but he alleged that administrative delay and the handling of their applications had delayed reunion and breached Article 8.

The claim sought damages under section 8 of the Human Rights Act 1998. The issues were whether the delay in granting status was unlawful, whether the family’s applications had been unlawfully impeded, whether Article 8 had been breached, and whether damages were appropriate.

1. Delay in granting status. There was no duty to grant refugee status before receipt of the IAT’s determination. Once the appeal had been allowed, however, the claimant had a right or legitimate expectation that status would be granted without unreasonable delay. The prescribed period under section 94(3) of the Immigration and Asylum Act 1999 was not itself the required period, but it was a relevant indicator. The approximately six-month delay was unreasonable and unlawful. The claimant’s circumstances, the importance of family reunion, the simple administrative nature of the task, the catalogue of errors and the welfare-support lacuna were material considerations.
2. Entry clearance. The claimant failed to establish that the Embassy had unlawfully refused to accept the applications, or that any such refusal caused the delay. Rule 320 of the Immigration Rules applied to applications by the refugee’s children and mother. The Secretary of State was entitled to require passports or other travel documents establishing identity and nationality, subject to waiver. The later issue of GV3 documents was a discretionary step taken to avoid further delay and did not establish earlier unlawfulness.
3. Article 8. The reasoning in Askar v United Kingdom was applicable. The delay did not prejudice the eventual determination of the applications, and the administrative failings, viewed overall, did not amount to a lack of effective respect for family life. Domestic unlawfulness did not automatically constitute an Article 8 breach. The claim for damages therefore failed.
4. Disposition. The claim and application for judicial review were dismissed. No order as to costs was made, save for legal aid assessment. Permission to appeal was granted.

This was a first-instance judicial review in the Administrative Court. The judgment records that the claimant’s asylum appeal had previously been remitted by the Court of Appeal to a differently constituted Immigration Appeal Tribunal, which allowed the appeal. The present claim was dismissed, with permission to appeal granted.