Kuchiey, R (On the Application Of) v Secretary of State for the Home Department

Article 13 of the Council Directive 2004/83/EC does not require refugee status to be granted retrospectively from the date of an earlier tribunal decision. A grant of refugee status takes prospective effect, subject to the Directive’s requirements at the date of the grant.

A claim for damages under European Union law requires proof of a right intended to benefit individuals, a sufficiently serious breach, and a direct causal link between the breach and the loss. Mere access to the labour market does not establish a right to earnings, and alleged loss must be proved directly.

The claimant, an Afghan national who had entered the United Kingdom as a minor, succeeded before an Immigration Judge on the basis that his age and circumstances placed him at risk in Afghanistan. A Senior Immigration Judge set that decision aside, but the Court of Appeal restored it.

The Secretary of State subsequently granted refugee status and leave to remain, but did not accept that the grant had to be backdated. The claimant sought damages under European Union law for the alleged failure to recognise his status from the earlier date. The issues were whether Article 13 of the Council Directive 2004/83/EC required retrospective recognition and, if so, whether the conditions for State liability and recoverable loss were satisfied.

1. The claim was dismissed. Article 13 of the Council Directive 2004/83/EC requires refugee status to be granted to a person who qualifies as a refugee under the relevant chapters. It does not prescribe the date from which a grant must be treated as effective, nor does it require backdating to an earlier tribunal decision.
2. Article 2(d) defines refugee status as recognition by a Member State of a person as a refugee. The declaratory character of recognition does not establish a right to retrospective recognition. Article 24(1), requiring a residence permit as soon as possible after status has been granted, and Article 23 of the Council Directive 2005/85/EC, requiring an asylum procedure to be concluded as soon as possible, support the prospective approach.
3. The claimant did not necessarily qualify for refugee status when the Secretary of State later made the grant. Article 13 had to be read with Articles 14(1) and 11(1) of the Qualification Directive. The claimant’s original entitlement had depended on his being a minor without effective family support, and legal certainty favoured clarity about the date on which status was granted.
4. Applying Haim [2000] ECR I-5148, the court held in any event that there was no sufficiently serious breach. The appellate and reconsideration process had been properly pursued, and the eventual grant of refugee status did not imply a sufficiently serious breach arising from the absence of retrospective recognition.
5. The claimant also failed to establish the required direct causal link. He had no right to a particular job or earnings merely because he might have been entitled to participate in the labour market. The claims for welfare benefits, general damages and injury to feelings were likewise unsupported by proof of direct causation. The local authority was not bound by the Immigration Judge’s finding about age, and the claimant had not challenged the local authority’s assessment.

The court made no order as to costs, subject to liberty to apply in writing. Permission to appeal was refused because there was no real prospect of success or other compelling reason.

• Court of Appeal: Reversed the Senior Immigration Judge’s decision and restored the Immigration Judge’s determination allowing the claimant’s asylum appeal.
• High Court (Administrative Court): Dismissed the remaining claim for damages under European Union law.