- BY Colin Yeo
Delay of 21 months in child refugee case found unlawful
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The Home Office behaved unlawfully in putting on hold a child’s asylum claim for over 21 months, the Upper Tribunal has found. There are thought to be as many as 200 other children in the same position.
The child had been admitted to the UK in “Operation Purnia” at the time of the Calais camp clearances in 2016. It is probably not a coincidence that a new policy was announced just last week, after the Home Office found out about this case, of granting leave to such children.
The case is R (on the application of TM (A Minor) by his litigation friend, The Official Solicitor) v Secretary of State for the Home Department (Minor – asylum – delay) [2018] UKUT 299 (IAC).
The lawyers for the child diligently chased the Home Office throughout the 21-month period but were misled into thinking that the case was being actively progressed. It was only after commencing legal action that they were informed the case had been much earlier been put on hold indefinitely, along with other Operation Purnia cases.
The reason why the cases were put on hold is still unknown. No explanation was offered to the court other than that the cases were complex, an explanation which was rejected. It seems that the children were admitted to the UK to join relatives but the Home Office had no idea what to do with the children once they arrived. For what it is worth, my guess — and it is very much a guess — is that the decision to admit the children was a political one taken at a high level, there was institutional resistance within the Home Office to allowing such children to remain in the UK and the issue was simply forgotten about by ministers. In that time we’ve seen a change of Home Secretary as well as three Ministers of State for Immigration.
There is some wider interest in the case for lawyers, as there are few cases that succeed on the basis that delay in decision-making was unlawful. Upper Tribunal Judge Plimmer reviews the authorities. For some background on delay in deciding the fate of asylum seekers aged under 18, see this post: Reports highlight chronic delay in deciding child asylum claims.
In considering whether the delay in determining a person’s (‘P) asylum application is unlawful all the circumstances must be considered in the round including, inter alia: length of delay; whether P was a minor at the date of his application; whether P continues to be a minor; if a minor, P’s best interests; the complexities of the claim; the explanation provided by the SSHD and resource allocation; compliance with timeframes provided; the impact of delay on P.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
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