Jawad v Secretary of State for the Home Department

An asylum application must be determined within a reasonable time. The assessment is flexible, but the Secretary of State must have regard to the circumstances and needs of the applicant and to any published policy. A prolonged and unexplained failure to follow a policy requiring prompt determination, particularly where the applicant is an unaccompanied minor who suffers consequential disadvantage, may amount to conspicuous unfairness and unlawful delay. The court may have granted a mandatory order requiring a decision, although the need for such relief may be removed once the decision is made. A claim for damages requires an applicable legal right supporting compensation. A European-law obligation to determine an asylum claim within a reasonable time could not be established where the relevant Procedures Directive was not in force when the claim was made.

The claimant, an Afghan national, arrived in the United Kingdom aged 15 and claimed asylum as an unaccompanied minor. The Secretary of State did not determine the claim for more than three years, despite repeated reminders and a published policy contemplating determination of children’s claims within 35 days. The claim was eventually refused, and the refusal was upheld on appeal.

The claimant sought judicial review, contending that the delay was unlawful. He also sought discretionary leave to remain and damages. The issues were whether the delay was unlawful, what relief was available, and whether damages could be awarded for the delay.

1. The delay was unlawful. The Secretary of State owed a public-law duty to determine the asylum application within a reasonable time. The concept is flexible, but the claimant’s age, status as an unaccompanied minor, the repeated reminders, the three-year delay and the absence of any explanation were material.

2. The Secretary of State had failed to follow a published policy under which asylum claims made by children should be determined within 35 days. Failure to follow an applicable published policy, particularly when wholly unexplained, ordinarily renders the conduct unlawful. The claimant suffered conspicuous unfairness, including loss of the practical advantages that might have followed from an earlier decision while he remained a minor.

3. FH & Others v Secretary of State for the Home Department [2007] EWHC 157 (Admin) did not preclude relief. It concerned incomplete asylum claims, involved different facts, and had been supported by substantial evidence explaining the delay. R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546 concerned mere delay and Article 8 considerations. The present case involved breach of policy and conspicuous unfairness, and therefore was materially different.

4. A mandatory order would probably have been granted once twelve months had elapsed, but the decision eventually made removed the need for such an order. The court accepted the Secretary of State’s undertaking to consider any application for discretionary leave made within one month of judgment and to determine it within three months, absent exceptional circumstances.

5. The damages claim failed. The claimant accepted that MK (Iran) v Secretary of State [2010] EWCA Civ 155 was binding against his argument that European Convention or European Union law supplied a compensatory right. The Procedures Directive was not in force when his asylum application was made, and the Qualification Directive did not establish the asserted obligation at that time.