Keshwari v Secretary of State for the Home Department

Article 6 of the European Convention on Human Rights does not generally apply to asylum claims. The Qualification Directive does not alter that position or transform the nature of the right to claim asylum. Delay in processing an asylum claim does not create a substantive right to remain. Whether delay is unlawful depends on its nature, context, fairness and consistency. Administrative failures affecting an individual case are not equivalent to a wholesale policy of postponement. A claim for damages based on lost opportunity also requires proof of causation. Where the claimant’s mental condition fluctuated and there was no assurance that earlier determination would have produced a different result, causation was not established.

The claimant, an Iranian national, sought judicial review of delay by the Secretary of State in determining his asylum claim. He alleged breaches of Article 6 of the European Convention on Human Rights and duties arising under several European Union instruments, and claimed damages and discretionary leave to remain.

The asylum claim was eventually refused and the refusal was upheld by an Immigration Judge. The central issues were whether Article 6 applied, whether the delay was unlawful, and whether it caused a lost opportunity to advance a successful asylum claim.

1. Article 6 and asylum claims. The claim for damages under Article 6 failed. The Grand Chamber’s approach in Maaouia v France (2000) 33 EHRR 1037 and Eskelinen v Finland excluded asylum matters from the civil and criminal heads of Article 6(1). That approach had been adopted domestically in R (on the application of G) v Immigration Appeal Tribunal [2004] 1 WLR 2953. The Qualification Directive did not change the nature of the right to claim asylum or the existing duty to determine such claims. The limited exception recognised in Husain v Asylum Support Adjudicator [2001] EWHC 852 (Admin) concerned support for destitute asylum seekers and did not apply.
2. Delay. Delay does not confer a substantive right to remain. The approach in R (on the application of FH) v Secretary of State for the Home Department [2007] EWHC 1571 (Admin) was relevant to the assessment of delay. The individual administrative failures in this case were materially different from the wholesale and politically motivated postponement condemned in R (on the application of S) v Secretary of State for the Home Department [2007] EWCA Civ 546. The delay was not unreasonable and did not amount to an abuse of power. Article 23 of the Procedures Directive added nothing material.
3. Causation and relief. The claimant could not establish that earlier processing would have enabled him to advance a successful asylum claim. His mental condition had fluctuated, including serious difficulties before the relevant delay, and the Immigration Judge had found that the illness was not caused by delay. The claims for damages and discretionary leave to remain therefore failed.
4. The application for judicial review was dismissed. The claimant was permitted to have his publicly funded costs assessed; no application for the defendant’s costs was made.