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

Permission to appeal should be granted where a proposed ground has a real prospect of success, even if an important legal issue remains unresolved and would otherwise be academic. A causation challenge is arguable where medical evidence identifies a period in which an asylum claimant may have been able to present his case, while the effect of missed appointments and the failure to rearrange an interview remains unclear. It is also arguable whether an asylum claim is a civil right for Article 6 purposes and whether the Dublin 2 regulation creates directly enforceable individual rights, particularly where an earlier Court of Appeal decision did not determine those questions.

The appellant sought judicial review of the respondent’s refusal or failure to determine his asylum claim within a reasonable time. He claimed declarations and damages under the Human Rights Act 1998. Cranston J dismissed the claim on 18 December 2008, finding that causation was not established. The appellant had suffered serious mental-health deterioration, although there had been a period in 2006 when he was reasonably competent. Moses LJ had granted permission on grounds 2, 3 and 6. The renewed application concerned grounds 4, 5, 8 and 9: whether the asylum claim was a civil claim for Article 6 purposes, whether the Dublin 2 regulation conferred directly enforceable rights, and whether the causation findings were sustainable. The central issue was whether those grounds had a real prospect of success.

The renewed application was granted on grounds 4, 5, 8 and 9. The court was determining arguability for permission purposes, not the ultimate merits of the appeal.

1. Causation and delay. The challenge to Cranston J’s causation findings had a real prospect of success. The evidence identified a period between February 2006 and June 2007 when the appellant might have been able to give an account and answer questions. It was unclear whether his failures to report in 2006 materially contributed to the delay, since interviews had not been arranged on those dates. One interview was missed, another was intended to be arranged but was not, and it was arguable that no satisfactory explanation had been given for the failure to rearrange it during 2006.
2. Medical evidence. It was also arguable that reliance on the immigration judge’s conclusion that the appellant’s mental condition was not caused by delay was flawed. By the time of the immigration appeal, the appellant’s condition was said to have prevented him from effectively presenting his case.
3. Article 6 and EU-law issues. The appellant faced difficulties in contending that an asylum claim was a civil right and that the Dublin 2 regulation created directly enforceable rights for individuals. He would need to distinguish Maaouia v France and earlier decisions concerning Article 6. Nevertheless, the argument based on the mandatory nature of refugee status under the Qualification Directive, and the alternative distinction between Dublin 1 and Dublin 2, was properly arguable.
4. Earlier authority. In HH (Iran) v SSHD [2008] EWCA Civ 504, the Court of Appeal had not determined the wider Article 6 question because the appeal would have had the same outcome even if the Convention applied. That decision nevertheless showed that the point was suitable for authoritative determination in an appropriate factual context.
5. Order. Permission to appeal was granted on grounds 4, 5, 8 and 9. The time estimate for the appeal was extended to one and a half to two days.

• Court of Appeal (Civil Division): On the renewed application, permission to appeal was granted on grounds 4, 5, 8 and 9. Permission had previously been granted on grounds 2, 3 and 6.
• Administrative Court, Queen’s Bench Division: Cranston J dismissed the application for judicial review by order dated 18 December 2008, including the claim for damages based on the alleged delay in determining the asylum claim.