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Why are there no recent delay cases, has the UKBA resolved the legacy (20 September 2012)

Date: 20/09/2012
Duncan Lewis, Public Law Solicitors, Why are there no recent delay cases, has the UKBA resolved the legacy

The UKBA’s answer to this is yes; the legacy completed in July 2011, as was stated to Parliament. The more accurate answer is that legacy was rebranded as the Case Assurance Audit Unit, ‘CAAU’ and this exercise continues unabated with the pile of cases rising steadily and surely.

Like an infection, delay has spread to other areas of law. Ironically, in 2002 Section 55 of the Nationality, Immigration Act 2002, brought in restrictions on asylum seekers receiving benefits if they delayed in claiming asylum. Delay was then defined as “failing to claim asylum at the first available opportunity” or in other words as soon as you have passed passport control. A very short time frame indeed.

The most recent case on delay found the UKBA to be unlawfully delaying support, under Section 4 of the Immigration and Asylum Act 1999, when a person makes a fresh asylum claim. In the case of MK and AH v Secretary of State for the Home Department [2012] EWHC 1896 (Admin) the Court found that the delay in providing support following the fresh claim was unlawful. The result of the delay caused detriment, in this case a breach of Article 3.

In DT v Secretary of State for the Home Department [2008] EWHC 3064 (Admin), the High Court deemed that whilst the delay can be legitimate, there must, if possible be ways to mitigate the detriment suffered by the Claimant. In this particular case, it was to grant the Claimant permission to work, as it affected the Claimant’s ability to live his life. This case was appealed to the Court of Appeal, and dismissed for other reasons as it was joined to the case of ZO and others v Secretary of State for the Home Department [2010] UKSC 36 before the Supreme Court.

In FH and Others v Secretary of State for the Home Department [2007] EWHC 1571 the High Court looked at the legality of the then legacy system, in order to process the legacy files that had accumulated. The Court found that a reasonable system was lawful as the issue of resources was a decision for the executive. However the system put forward was one with an aim to process the files within a certain period of time. It was with this methodology that the UKBA informed Parliament that the legacy was completed in July 2011.

Delay continues to occur even now in many decisions made by the UKBA. In relation to primary asylum cases, delay is case dependant. The Directive states that a decision on primary asylum claims should be made within six months, or a reason for the delay should be given. However in the case of minors it is clear that the primary consideration should be the welfare of the child rather than any other considerations that might cause delay. Further a detained person must be prioritised over a person who is not detained, although if the asylum claim has not been processed it would raise a question as to the lawfulness of the detention.

In relation to the Detained Fast Track, delay is ever present and requires the utmost attention. The Courts in Saadi found that a period of five days was a lawful period in which to detain someone pending consideration of their asylum claim. These days it is very rare that a person who is selected for the DFT is even within the process with access to a lawyer, within five days. The issue of delay especially raises its head where the evidence needs to be collected by the UKBA. This has arisen in a number of cases, such as Afghan British Army interpreters, were the UKBA simply needed to request the information from the Ministry of Defence. The delay in that case was unlawful but this manifested its self as damages for unlawful detention rather than damages for delay.

In secondary asylum claims, also known as fresh claims, there is no real guidance as to when these claims should be considered, and is subjective. Again, were minors are involved the protection of the child takes precedence over other matters. This could, also obviously, include removal of the child sooner back to country of origin, if this was in the interest of the child.

It is unclear why a secondary asylum claim should take longer to consider than a primary asylum claim, as clearly a number of these are subject to a fast procedure, due to no material difference from the previous claim. Further most secondary claims are normally based upon the previously considered primary claim as such they should be subject to faster consideration.

Moving away from asylum claims, extensions of leave applications, made before the previous leave has expired, are governed by the 1971 Act which then extends leave pending the decision of the UKBA. This main issue relating to this is proving that you have permission to work. Whilst an asylum seeker who has an outstanding application for over a year could carry a card stating that they have permission to work, a person that extends their leave to remain would have no such document. As such the issue of delay is clearly an issue that is dependent on the person and the effect that it has upon them.

The underlying principle to be considered in all delay issues is simply what the effect on the individual is, if there is a detriment, can this be mitigated by the UKBA, in order that the application need not be processed as a priority. The issue of challenging delay finds its fundamentals back in history, the Magna Carta records,’ Justice delayed, is Justice denied’ requiring that persons it applied to, to be brought before the Court within a reasonable period of time.

Currently the vast majority of applications made to the High Court in relation to delay are settled by the UKBA with an offer to consider the matter within three months, either following pre-action procedure or the actual lodgement of the application with the High Court.

As such the policy not to fight these cases, results in little or no case law developing on the issue of delay, and the development of the law remains within the knowledge of the experienced solicitors running these cases.

By Adam Tear

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