Reported Case

This case concerns a minor, TM, who brought a judicial review against the Secretary of State for the Home Department (SSHD) challenging the ongoing delay in giving a decision on TM’s asylum claim. TM first made a claim for asylum in the UK on 24 November 2016, when he was 15, after being brought over from the Calais jungle as part of a group of ‘“Purnia family children”’.

History of the Case

TM is an Afghan national, who was forced to flee his home country at the age of 14 for fear of persecution from the Taliban and the Afghan authorities. He currently resides with his maternal uncle, who helped him leave Afghanistan.

After he left Afghanistan, he claimed refuge in France and took up residence in the Calais jungle, where he was interviewed to be expedited the UK as one of a number of unaccompanied minors who had familial ties in the UK.

He was brought over as part of ‘"Operation Purnia”’, where between October and December 2016 550 eligible children were transferred from the camp to the UK.

The SSHD argued TM’s case was ‘”NSF”’, meaning that it was not straightforward, and the case notes dated 24th April 2017 state that his case was to be put on hold ‘pending further guidance.’

After a pre-action protocol (PAP) letter, TM’s solicitors requested an interview to be scheduled for within 14 days and for a decision regarding his claim within 30 days. The interview took place on the 31st May, but no decision was made. Even after a letter requesting an update from TM’s solicitors, as well as a further PAP letter, the SSHD did not respond with a decision. It was after this that the SSHD replied with a letter assuring that the caseworker was ‘actively seeking to progress’ TM’s case, that TM’s legal team chose to hold off on requesting permission to bring a judicial review against this delay in the hope that a decision would be served on TM promptly. On 7th February 2018, decision still pending, they put through the request and judicial review proceedings began on 14 May 2018. The SSHD’s request for a stay on the basis that the Home Secretary was reviewing TM’s case as an applicant who ‘…entered the United Kingdom pursuant to section 67 of the Immigration Act 2016’, commonly referred to as the Dubs amendment, was rejected. This categorisation was incorrect, since TM was actually part of the cohort which was brought to the UK as part of ‘Operation Purnia’ in accordance with the ‘expedited process’.

At the hearing before Upper Tribunal Judge (UTJ) Plimmer, TM’s case was argued on three grounds:

Ground 1 – The delay is in breach of SSHD’s obligations under the Procedures Directive 2005/85/EC.

Ground 2 – The delay is unlawful and contrary to the SSHD’s statutory duty under section 55 of the Borders, Citizenship and Immigration Act 2009.

Ground 3 – Wednesbury Unreasonableness: The delay is not in TM’s best interests, as an unaccompanied minor, and to excuse the delay pending a policy decision which does not relate directly to TM is unreasonable.

The Judgment

UTJ Plimmer, when considering the high threshold for identifying Wednesbury Unreasonableness submitted:

‘In my judgment, when all the facts of the case and the context in which the delay arises are considered in the round, it can properly be said that there has been an unlawful delay.’

The SSHD’s delay cannot evidentially be considered justified, and is ‘irrational’ because, as detailed in (i) – (vii) in UTJ Plimmer’s judgment, the explanation for the SSHD’s decision to hold TM’s claim as one of the ‘Purnia family children’ applicants was deficient and ultimately the excessive delay has not been in TM’s best interests as an unaccompanied minor. For this reason, ground 3 has been made out.

When considering what could be considered a reasonable period of time within which a decision should have been made in regards to TM’s asylum claim, UTJ Plimmer ruled that 56 days after June 2017 was appropriate. This was after TM’s extensive interview had been conducted and the SSHD had all the necessary evidence required to make a decision. If this had been the case, the decision would have been made and served on TM in September 2017. This puts the delay as ‘lengthy’.

In regards to ground 1, UTJ Plimmer did not accept that the delay was in breach of SSHD’s obligations under the Procedures Directive, however found that ground 2 was evident in that the SSHD had not considered TM’s best interests throughout.

Thus, the application for judicial review was granted and directions were made for the SSHD to make a decision on TM’s asylum claim within 28 days and to pay TM’s costs. Application to appeal to the Court of Appeal was formally refused.

Representation

The legal team on behalf of the Applicant is Mr. Christopher Jacobs, Counsel, of Landmark Chambers and Bahar Ata alongside Marina Khan, of Duncan Lewis Solicitors.

Find full details of this case on Bailii’s website here.