TM (A Minor), R (on the application of) v The Secretary of State for the Home Department

An unlawful delay in deciding an asylum claim is assessed by considering all the circumstances in the round. The flexible requirements to decide a claim within a reasonable time and, under Article 23(2), as soon as possible, do not impose a universal six-month limit.

Relevant matters include the delay’s length, the claimant’s age and best interests, any individual complexity, the Secretary of State’s explanation and resources, compliance with and communication of timeframes, and the delay’s impact. A child’s best interests must be considered when a decision is made to place the claim on hold. An unexplained cohort-wide hold, unsupported by evidence of complexity, resources or consideration of welfare, may render continuing delay Wednesbury unreasonable.

The applicant was a 17-year-old Afghan national who had entered the United Kingdom from the Calais camp in October 2016 under the expedited transfer process known as Operation Purnia. He lived with his uncle and made an asylum claim on arrival.

Following a detailed interview and further representations in May and June 2017, the Secretary of State placed outstanding Operation Purnia claims on hold. By the hearing, no decision had been made. The applicant sought judicial review, alleging breach of Article 23 of Council Directive 2005/85/EC, section 55 of the Borders, Citizenship and Immigration Act 2009, and Wednesbury unreasonableness.

The central issue was whether the continuing delay in determining a minor’s asylum claim was unlawful.

1. The application for judicial review was granted. The delay was unlawful because, viewed cumulatively and under the high Wednesbury threshold, it had not resulted from a rational system.

2. There is no fixed period after which delay in an asylum case becomes unlawful. The requirements in Immigration Rule 333A and Article 23(2) of Council Directive 2005/85/EC are flexible and fact-sensitive. Six months is not a universal benchmark. It triggers obligations concerning information about delay, but a longer period may be reasonable and a shorter period may be excessive.

3. The relevant assessment includes the delay’s length; whether the claimant was and remains a minor; the claimant’s best interests; individual complexities; the Secretary of State’s explanation and resource allocation; compliance with and communication of timeframes; and the delay’s impact. On the evidence, the claim was ready for an adequate and complete examination by June 2017. A reasonable decision period would have been 56 days thereafter. The subsequent delay was lengthy.

4. Section 55 of the Borders, Citizenship and Immigration Act 2009 required the Secretary of State to consider the applicant’s best interests when deciding to put his claim on hold. The statutory guidance required every effort to reach timely decisions for children and minimise uncertainty. There was no evidence that the applicant’s welfare, or that of the affected cohort, had been considered. That omission was material, although best interests may also favour an orderly decision-making process.

5. The applicant’s earlier transfer from France under the expedited process did not make his substantive asylum claim intrinsically complex. Once responsibility for examining the claim had been resolved, it fell to be determined in the ordinary way. The Secretary of State produced no evidence justifying the cohort-wide hold, the asserted policy review, resource allocation, the failure to review the hold, or the failure to communicate an explanation or timeframe.

6. The Tribunal found a breach of Article 23(2) because the examination procedure had not been concluded as soon as possible without prejudicing an adequate and complete examination. There was no separate breach of the timeframe-information limb because no specific written request had been made. The Secretary of State was ordered to decide the asylum claim within 28 days, absent written special circumstances, and to pay costs.

This was an original application for judicial review in the Upper Tribunal. No appeal from a lower court or tribunal was stated.