Domi v Secretary of State for the Home Department

When deciding whether to extend time for a judicial review claim concerning an asylum decision, the court may consider whether the claimant has an arguable prospect of succeeding in the underlying immigration appeal. Delay and prejudice remain important, particularly where the delay has impaired the Secretary of State’s ability to investigate the evidence. However, the importance of asylum claims and the risk of removal before a potentially meritorious claim is considered may justify an extension. Delay alone does not create a legitimate expectation of asylum or leave to remain. An Article 8 claim based on delay requires both a free-standing private or family life claim and circumstances capable of making removal disproportionate. A policy granting leave to certain families with dependent children may arguably require consideration of whether its rationale applies to an unaccompanied child who arrived in the United Kingdom during his formative years.

The claimant, a Kosovo national, entered the United Kingdom as a minor and claimed asylum. The Secretary of State refused the claim, but the claimant asserted that neither he nor his solicitors received notice of the refusal. He was subsequently detained and removed to Kosovo.

After returning to the United Kingdom, the claimant sought judicial review of his detention and removal. Permission had initially been refused by Ouseley J, including on the ground that there was nothing in the merits to justify extending time. On reconsideration, the issues were whether the former solicitors had received the refusal letter and whether time should be extended. The central question was whether the claimant had an arguable prospect of succeeding in an appeal, including on Article 8 grounds, sufficient to justify allowing the claim to proceed despite substantial delay.

1. Permission and extension of time. The court extended time for filing the claim form and granted permission to proceed with the judicial review claim. The claimant had an arguable chance of proving that his former solicitors had not received the refusal letter. The evidence concerning delivery, the solicitors’ subsequent correspondence and their conduct when informed of his detention was capable of supporting either side.
2. Delay and prejudice. Without considering the merits of the underlying asylum appeal, the delay would have justified refusing an extension. The claim was filed about 14 months after the claimant discovered that his asylum claim had been refused. The delay by his solicitors was inadequately explained, and the Secretary of State had suffered prejudice because postal records had been destroyed. The court nevertheless took account of the claimant’s reliance on solicitors, the importance of asylum cases and the possibility of removal to a country where he might face persecution.
3. Underlying appeal. The original asylum case appeared weak because conditions in Kosovo had changed. The claimant’s current case relied principally on Article 8 of the European Convention on Human Rights, based on the delay and the private life he had developed in the United Kingdom. The principles in MM [2005] UKAIT 00163 were applied: delay alone is insufficient; delay must be considered with a free-standing private or family life claim; and gross delay will rarely assist where the claimant acquiesced in it.
4. The claimant had no arguable legitimate expectation that his asylum claim would have been decided within seven months of arrival. The policy relied upon distinguished between taking action and making a decision, and did not establish an expectation of a decision within that period.
5. The claimant’s argument based on the policy announced on 24 October 2003 was nevertheless arguable. It was possible that the policy’s rationale concerning children who had spent formative years in the United Kingdom could apply to an unaccompanied child. That arguable point alone justified the extension and permission. The parties were invited to agree costs, failing which the issue would be determined on written representations.

The judgment was a first-instance decision on reconsideration of permission.

• Administrative Court: Ouseley J refused permission on 2 September 2005 and refused an extension of time. On reconsideration, the present court extended time and granted permission to proceed.
• Administrative Court: Forbes J heard the reconsideration application on 26 April 2006, but adjourned it after counsel was taken by surprise by the argument concerning the merits of the underlying asylum appeal.