S, R (on the application of) v First-Tier Tribunal

An effective remedy under Article 39 of the Procedures Directive need not be an immediate merits appeal against the initial refusal of asylum. Its effectiveness must be assessed in the context of the Member State’s administrative and judicial system as a whole.

A later statutory appeal which permits examination of the asylum claim on its merits, together with judicial review of the initial decision where appropriate, may satisfy that requirement. A claimant must establish particular prejudice arising from the temporary inability to bring an immediate statutory appeal. The relevant provisions of the Nationality, Immigration and Asylum Act 2002 were compatible with Article 39 and did not unlawfully disadvantage an unaccompanied child.

The claimant, an unaccompanied child from Sudan, challenged the First-tier Tribunal’s preliminary decision that he had no exercisable appeal against the refusal of his asylum claim. He had been granted only five months’ discretionary leave, whereas section 83 of the Nationality, Immigration and Asylum Act 2002 conferred an appeal against refusal of asylum only where leave exceeded one year.

Before the judicial review hearing, the claimant obtained an appealable refusal of further leave and removal decision. He exercised an in-country appeal, which was later set aside and remitted for reconsideration. The central issues were whether the statutory scheme denied an effective remedy under Article 39 of Directive 2005/85/EC, whether judicial review could contribute to that remedy, and whether the claimant’s best interests as a child required an immediate merits appeal.

1. The claim for judicial review was dismissed. The First-tier Tribunal was entitled to conclude that no exercisable statutory appeal existed on 2 August 2010.
2. The effectiveness of the remedy under Article 39 of Directive 2005/85/EC had to be assessed by reference to the domestic administrative and judicial system as a whole. Article 39 did not create an immediate and unqualified right to appeal on the merits against every adverse asylum decision.
3. The later appeal against refusal to extend leave or against removal directions enabled the claimant to have his asylum and humanitarian protection claims examined on their merits. That remedy was not ineffective merely because it arose from a later immigration decision.
4. Judicial review, although not a merits appeal, could contribute to an effective remedy. It could provide relief for errors of law or procedure, unlawful or unreasonable decision-making, misconstruction or arbitrary application of policy, and failure to comply with statutory duties.
5. The claimant had to show particular prejudice caused by the temporary inability to appeal. He remained lawfully in the United Kingdom, had access to care and welfare support, employment and public services, and ultimately had a merits appeal. The evidence did not establish a material loss of refugee-related benefits or adverse impact on his welfare.
6. Section 55 of the Borders, Citizenship and Immigration Act 2009 required proper regard to the claimant’s best interests, but the statutory scheme did not show that those interests had been disregarded. The rationale for the one-year threshold applied because a further application or removal decision was likely to generate an appeal in the near future. Sections 82 and 83 of the Nationality, Immigration and Asylum Act 2002 were not inconsistent with Article 39, discriminatory, or disproportionate.

1. First-tier Tribunal: Immigration Judge North decided on 2 August 2010 that the claimant had no exercisable right of appeal against the refusal of asylum.
2. High Court (Administrative Court): Judicial review was dismissed. The court upheld the First-tier Tribunal’s approach.
3. Upper Tribunal: The claimant’s later appeal against the refusal of further leave and removal was set aside on 19 July 2011 and was to be reconsidered. It was subsequently allowed by consent on 11 April 2012 after refugee status was granted.