The High Court of Justice in Northern Ireland has dismissed a judicial review alleging a breach of article 8 of the European Convention of Human Rights because of the delay in the applicant’s asylum claim. The case is JR247, Re Application for Judicial Review (Rev1) [2024] NIKB 72.

Background

The applicant is a Nigerian national who was trafficked to the UK for the purpose of sexual exploitation. After escaping on 27 February 2020, she claimed asylum in Belfast on 5 March 2020. She had her substantive asylum interview on 29 October 2020 and was referred to the National Referral Mechanism to determine whether she was a victim of modern slavery. It was concluded on 13 October 2021 that she was a victim of sexual exploitation/forced sex work.

After chasing letters and a pre action letter were sent, an application for judicial review was lodged on 4 November 2022 challenging the delay in processing her claim. The applicant was recognised as a refugee on 20 January 2023.

The judicial review

The Home Secretary sought to have the claim dismissed on the grounds that it was academic now that the applicant had a decision on her claim. The court noted that there had been multiple judicial reviews challenging delays in asylum claims and decisions were generally made after leave (permission) had been granted and before the full hearing, meaning that claims were then withdrawn.

The applicant resisted the argument that the case was academic as she sought both a declaration and damages for a breach of her rights under article 8 of the European Convention on Human Rights. In light of that and the “increasing number of applications” challenging asylum delays, the court decided the claim could continue and leave (permission) was granted on 27 January 2023.

The applicant challenged specific instances of delay, including the period from 27 July 2020 to 24 September 2020 which was when the preliminary information questionnaire had been lodged but not uploaded to the Home Office’s storage platform. The delay between 29 October 2020 when the asylum interview took place and 21 October 2021 when the trafficking decision was made was also challenged.

Also challenged was the Home Office’s delay in assessing the asylum claim while the trafficking claim was being considered as well as the delay following the trafficking decision until the asylum decision was made in January 2023. The Home Office argued that this was “an active and live claim” and that it was “entirely reasonable” to wait for the trafficking decision before deciding the asylum claim.

In resisting the claim, the Home Secretary pointed to the high number of asylum of trafficking claims. The court said that:

it would have been helpful to obtain more detailed figures and explanations from the respondent as to the difficulties encountered in respect of delays in determining asylum claims.  At one stage it was suggested in the correspondence that this was due to putting in place mechanisms to deal with the new system to be implemented as a result of the Nationality and Borders Act 2022 which came into force on 22 June 2022, the effect of which was to create different statuses of asylum seekers.  However, this has not featured in the respondent’s affidavit evidence or in the submissions made by Ms Murnaghan in seeking to justify any delays.

The applicant relied on a paper dated 5 April 2023 on the asylum backlog by the Migration Observatory as well as the 2021 inspection of asylum casework by the Independent Chief Inspector of Borders and Immigration. It was argued that the delay in deciding the applicant’s asylum claim was a breach of her rights under article 8.

The court referred to the relevant authorities on human rights breaches and delay, including FH and others, R (On the application of) v Secretary of State for the Home Department [2007] EWHC 1571 and EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159. Extensive reference was also made to BAC v Greece, App No: 11981-15; [2018] 67 EHRR 27, a case where a Turkish national had waited 12 years for a decision on his asylum claim.

The court concluded that “as per EB and BAC that delay in determining an asylum claim may result in a breach of an asylum seeker’s article 8 rights”. The court said that there is a duty for claims to be examined in a reasonable time and what that means is fact specific, it is not for the courts to be prescriptive.

The court did not find a breach of article 8, as it was considered that there was insufficient evidence of the impact on the applicant’s mental health and she was able to access support and services while waiting for her asylum decision.

The following guidance was given for claims alleging a breach of article 8 due to delays in asylum decision making:

(i)        In certain circumstances delays in making decisions may give rise to a breach of an asylum seeker’s article 8 rights.
(ii)       The court cannot be prescriptive about what constitutes an unlawful period of delay. 
(iii)      An important factor will be whether an actual decision has been made.  If a decision has been made, then it would only be in exceptional circumstances that a breach of article 8 will be established.  If a decision is pending then the court will have to make an individual assessment of the period of delay, the reasons for any delay and whether a decision is imminent.  Any delay must be so excessive as to be regarded as manifestly unreasonable.  In a case such as BAC it was easy for the court to determine that the relevant delay was inexcusable.
(iv)      In order to establish a breach of article 8 in any case, the applicant will need to point to specific evidence-based factors which demonstrate an interference with article 8 rights, above and beyond what one would expect of any person awaiting such an important decision.  Any impact on private or family life must be serious.  This could include factors pointing to serious deprivation such as homelessness, lack of medical attention required in respect of significant health issues, impact on the welfare of children and significant interference with family or personal relationships.

Conclusion

The decision that “exceptional circumstances” are required to establish a breach of article 8 where a decision has been made seems likely to incentivise the Home Office to continue the current practice, acknowledged in this decision, of deciding claims after judicial review applications are lodged in order to have them withdrawn. This does not seem like a very efficient way of doing things. Other delay judicial review applications are pending and we wait to see if the ongoing reluctance of the courts and tribunals to intervene in delays will continue.

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