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

A written indication of an intention to claim asylum does not necessarily constitute a registered asylum claim where the claimant fails to attend the required screening interview or otherwise progress the application. EU directive recitals cannot be relied upon directly to establish unlawfulness. An obligation to determine a registered asylum claim within a reasonable time is fact-sensitive and must be assessed in context, including any applicable legacy programme. The claimant bears the burden of proving unlawfulness and must provide sufficient evidence for any alleged disparity of treatment. Declaratory relief is discretionary and should serve a useful practical purpose.

The claimant, a Nigerian national, entered the United Kingdom as a minor and, through solicitors, expressed an intention to seek asylum in 2000. The Secretary of State invited her to attend an asylum screening interview, but she did not attend and did not otherwise progress the matter. Years later, she claimed that her asylum claim had remained outstanding, that it had been treated inconsistently with her sister’s case, and that the Secretary of State had failed to determine it within a reasonable time.

Permission for judicial review was granted, and the hearing was adjourned before the matter came before the Deputy High Court Judge. The issues were whether an asylum claim had been registered, whether the European directive or a duty of consistency assisted the claimant, whether there had been unreasonable delay, and whether any declaration should be granted.

1. Claim dismissed. The claimant had not established that a formal asylum claim was registered. Her solicitors indicated willingness to attend an interview, and the Secretary of State gave clear instructions to attend the asylum screening unit. The claimant did not attend and did not otherwise progress the application.
2. The claimant could not rely directly on the recitals to the European Directive on standards of procedure in Member States for granting and withdrawing refugee status. The Directive established minimum standards and required implementation by a Member State. The court had not been shown any domestic implementing legislation that could support the proposed claim.
3. The relevant issue was registration of an asylum claim, rather than the later handling of a properly registered claim. The provisions concerning appropriate examination and decisions on withdrawal or abandonment therefore did not assist the claimant on the facts.
4. The court accepted the legal principle identified in MK (Iran), [2010] EWCA Civ 115, that an asylum claim should be decided within a reasonable period. That obligation was fact-sensitive. The statute stipulated no particular period, and the assessment had to take account of the circumstances, including the legacy programme. On that assessment, there had been no unreasonable delay.
5. The alleged disparity between the claimant’s treatment and her sister’s treatment was unsupported by sufficient evidence. The claimant bore the burden of establishing unlawfulness and had not provided the evidence necessary to permit a reliable comparison.
6. Even if the claimant had established an unlawful failure to register or determine the claim, a declaration would have been discretionary and would have needed to serve a useful practical purpose. In the legacy context, delay alone did not establish unlawfulness without an underlying illegality. Costs were summarily assessed at £7,000.

The judgment states that permission for judicial review was granted by Ms D Gill, sitting as a deputy High Court judge, on 11 October 2013. The matter was later adjourned by His Honour Judge Allan Gore QC, sitting as a deputy High Court judge. The present claim was then dismissed by Richard Clayton QC, sitting as a Deputy High Court Judge.