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

Where an asylum application has remained undecided for an inordinate period and the respondent offers no explanation, the delay may justify judicial review relief. A stated intention to decide by a particular date does not remove the need for an enforceable order where the Secretary of State will not give an undertaking. The court may impose a firm deadline and preserve flexibility through liberty to apply.

The appellant, an Iraqi national, entered the United Kingdom in 2006 and made a second asylum application in January 2007 after an earlier application had been treated as withdrawn. No decision had been made despite extensive correspondence and repeated assurances.

He commenced judicial review proceedings alleging unlawful delay. The Deputy High Court Judge made an interim order requiring a decision by 4.00 pm on 2 January 2014 and postponed further consideration of the claim. The appellant appealed. By the hearing, the respondent stated that she aimed to decide the application by 15 November 2013 but declined to undertake to the court to do so. The central issue was the appropriate interim relief in light of the prolonged delay.

1. Appeal allowed. The Court of Appeal substituted an order requiring the respondent to make, serve and lodge with the court a written decision on the appellant’s asylum application by 4.00 pm on 15 November 2013.
2. The delay, which had lasted for more than six years after the substantive asylum interview, was described as inordinate. The Secretary of State had provided no explanation or excuse for it. That circumstance supported the appellant’s contention that the delay had become unlawful and required effective judicial review relief.
3. The respondent had repeatedly indicated that a decision would be made within a stated period. However, when asked to give the court an undertaking to decide by 15 November 2013, counsel confirmed that instructions did not permit such an undertaking. In those circumstances, the court considered that the appellant’s request for an order fixing that date was well-founded.
4. The court treated the deadline as appropriate interim relief in the circumstances. To retain procedural flexibility, the order also gave both parties liberty to apply.

Lord Justice Aikens gave the judgment, with Lord Justice Moore-Bick agreeing.

• Court of Appeal (Civil Division) [2013] EWCA Civ 1715: appeal allowed. The decision deadline was brought forward to 15 November 2013, with liberty to apply.
• High Court, Queen’s Bench Division: Deputy High Court Judge Cooke made an interim order requiring a decision by 2 January 2014 and postponing further consideration of the judicial review proceedings. The judgment refers to the order as made on 28 June 2013 and, elsewhere, as made on 5 July 2013.