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

An asylum application must be decided within a reasonable time. The standard is flexible, but prolonged unexplained administrative inaction may be unlawful.

However, the Dublin Regulation EC 343/2003 allocates responsibility between member states and does not confer an individual right to determination within a particular time. A claim for refugee status also remained outside the civil-rights guarantee in article 6 of the Convention. The Qualification Directive 2004/83/EC did not justify a domestic court in departing from settled Strasbourg authority. Accordingly, unlawful delay did not found a claim in damages under European Union or Convention law.

The appellant sought damages for the Secretary of State’s delay in determining his asylum claim. He alleged that the delay aggravated his serious psychiatric illness and deprived him of a period in which he could have presented a coherent and more persuasive asylum case.

Cranston J rejected the claim. By the time of the appeal, the appellant had received indefinite leave to remain on compassionate grounds, so his right to remain was no longer in issue. The Court of Appeal considered whether the delay was unlawful, whether it caused recoverable loss, and whether a damages remedy arose under European Union law or article 6 of the Convention as given effect by the Human Rights Act 1998.

1. Appeal dismissed unanimously. The Secretary of State had been under a public-law duty to decide the asylum application within a reasonable time. Applying the flexible approach in [2007] EWCA Civ 546, the court held that the delay had become unreasonable by 11 July 2006 at the latest. The case had been left without a case-specific justification after the Department accepted responsibility and knew that the appellant was a mentally ill minor.

2. The medical evidence did not establish a significant period of lucidity between January 2006 and June 2007. There was no realistic basis for concluding that an earlier hearing would have enabled the appellant to advance a more convincing asylum case. There was some evidence that delay might have aggravated his illness, but liability did not arise in any event.

3. Article 16(1)(b) of the Dublin Regulation EC 343/2003 required the responsible member state to complete examination of an asylum application. Its purpose was nevertheless to allocate responsibility between states, prevent asylum shopping, and ensure that one state processed each application. It did not create an individual right to a decision within a particular time, and therefore supplied no basis for damages under European Union law.

4. Article 6 of the Convention did not apply to asylum proceedings. The court followed the settled Strasbourg line, including (2000) 33 EHRR 1037 and the later Swedish admissibility decision, that immigration and asylum decisions do not determine civil rights or criminal charges. The economic and social consequences of refugee status, and its recognition in the Qualification Directive 2004/83/EC, did not materially change the Convention position across its wider non-EU field of operation.

5. The Court of Appeal should keep pace with Strasbourg jurisprudence, but should not develop a distinct and more expansive Convention jurisprudence. Sedley LJ, concurring in the result, considered that the Directive might arguably have generated an individual civil right to asylum, but accepted that this court could not take that step before Strasbourg did so.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld Cranston J’s rejection of the damages claim.
• High Court, Queen’s Bench Division, Administrative Court (Cranston J): The claim for damages arising from delay in the processing of the asylum application was rejected.