R (MK (Iran)) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Carnwath,Lady Justice Smith,Lord Justice Sedley,Lord Justice Richards,Lord Justice Ward
Judgment Date29 July 2010
Neutral Citation[2010] EWCA Civ 907,[2010] EWCA Civ 115
CourtCourt of Appeal (Civil Division)
Date29 July 2010
Docket NumberCase No: C1/2009/2158,Case No: C4/2009/0663

[2010] EWCA Civ 115

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE,

QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT

Mr Justice Cranston

Before: Lord Justice Sedley

Lord Justice Carnwath

and

Lady Justice Smith

Case No: C4/2009/0663

CO/8588/2007

Between
The Queen on the Application of Mk (Iran)
Appellant
and
The Secretary of State for The Home Department
Respondent

Becket Bedford & Mark Kelly (instructed by Sultan Lloyd Solicitors) for the Appellant

Jeremy Johnson (instructed by Treasury Solicitor) for the Respondent

Hearing dates: Weds 20th & Thurs 21st January, 2010

Lord Justice Carnwath

Lord Justice Carnwath:

1

In this appeal from Cranston J, the appellant claims damages arising from the delay in the processing his asylum application. Following the grant of indefinite permission to remain shortly before the hearing of this appeal, his right to remain in this country is no longer in issue. However, he alleges that the delay caused two types of damage: first, it aggravated his existing psychiatric condition; secondly, he lost the opportunity of presenting his case during a period (a so-called “window of lucidity” from January 2006 to July 2007), when, it is said, his mental condition was such that he could still have supported it by coherent evidence. The claim raises novel issues of both European Union law and Convention law.

Factual background

2

The appellant (“K”) entered the country in September 2004, and claimed asylum. The basis of this claim was noted in a manuscript statement taken by his solicitors in December 2004, which the judge transcribed as follows:

“…he said that seven years previously the Iranian security forces had raided his home looking for his older brother, who was involved with a political group. The claimant had tried to stop them from coming in and was beaten. His nose and hand had been injured and his brother had been taken by the security forces but the claimant did not know where. The claimant's mother had died of a heart attack and his father had died four months later of cancer. The claimant said that he had spent some time working for the political group, under duress. He told his solicitor that another of the claimant's elder brothers was also involved with the same political group. That brother had forced the claimant to assist him at demonstrations in setting fire to photographs of Khatami and Khamenei. The claimant said that the night the claimant left his house, three officers had raided it. The claimant's brother was at home. The claimant panicked, grabbed a knife and tried to threaten the officers but they would not stop and he stabbed one of them and fled the house.”

This has remained the fullest available account of his claim, save that a short file-note in January 2006 records that he had heard that his brother had been “shot by the authorities” the previous year (without any further details).

3

Following his asylum claim, it was discovered that he had come to this country from another EU country, namely Greece. Accordingly, under the Dublin Regulation EC 343/2003 (“Dublin II”), the Secretary of State asked the Greek authorities to take responsibility for determining his claim, which they agreed to do. He was detained in early 2005 for removal to Greece. In March 2005 he harmed himself while in detention. The removal directions were then cancelled and he was sent for psychiatric assessment. On 5 th April 2005, the Secretary of State wrote accepting responsibility under Dublin II for determining his claim. An internal note of the 4 th April recorded that he was to be released because –

“… he is a minor and this has been accepted by social services. He is therefore not removable to Greece as he is a 10.1 to Greece, the UK was the first place he claimed asylum. Case should now be considered in UK.”

(The reference is to Article 10.1, which places responsibility for examination on the member state whose border has been “irregularly crossed” on the way to the final destination. That does not apply in the case of a minor, in relation to whom, in the absence of a family member, responsibility rests with the state where the minor applied for asylum: art 6.)

The notes include a reply, dated 13 th April, stating that the applicant was “a disputed minor”.

4

Before new removal directions were set, there was an age assessment by Birmingham Social Services that he was a minor, and they agreed to take responsibility for him. It seems to have been accepted by them (although a question later arose before an immigration judge – see below) that he had been born in March 1988, and therefore would reach majority in March 2006. As an unaccompanied minor, he could not be removed under Dublin II, and he was released.

5

In December 2004 the Department had been given notice of solicitors acting for him. Following their acceptance of responsibility for the case in April 2005, the Department appears to have done nothing of substance to progress the claim for the remainder of that year. In January 2006 the solicitors wrote asking for the claim to be expedited because the delay was affecting K's mental health. By a letter of 2 nd February 2006, the Department noted that a decision not to pursue “third country grounds” had been made in April 2005, and continued:

“It is not clear why his case has not been progressed since this date and I apologise for the problems this inaction has caused. I will now pass your client's case to our interviewing team to arrange for your client to be called in for a screening interview so that he can obtain an ARC card (Application Registration Card). As your client lives in Birmingham, he is likely to be screened in Liverpool.”

Before us Mr Bedford relies on this letter as showing, first that there was no attempt to justify or explain the delay, for example by reference to pressure of work, nor any suggestion that there was any obstacle to completing the process in a reasonable time.

6

The subsequent sequence of events is explained in a witness statement by Mr Nelson, a senior official in the Home Office. The files show that K “reported” on several occasions, but failed to report on others. However, it remains unclear from the records which if any of these occasions were related to substantive steps in the process (as opposed to simply compliance with the reporting conditions of his temporary admission).

7

In a letter written immediately before the Court of Appeal hearing, the Treasury Solicitor has sought to “clarify” a suggestion by Mr Nelson that a screening interview had been arranged on 5 th March, 2006. It is accepted that on 1 st March K did attend and obtain a registration card, but it seems that there was no screening interview planned on that date or the 5th. The letter asserts that the “intention” was to conduct the screening interview on 20 th March, but that K failed to attend on that occasion. However, as Mr Bedford points out, there is no reference to any documentary support for this assertion, nor any record of notice to K's solicitors. I would not draw any adverse inference against K on the basis of this inconclusive evidence.

8

Mr Nelson's statement indicates that according to the records arrangements were made for a screening interview on 5 th July 2006, but that the case was then put into “Work in Progress Storage” (WIPS). He is refreshingly candid about what that implied:

“This is a bit like an in-tray. A caseworker will have a number of current files ongoing at any particular time and a number of other files which are work in progress which will be dealt with at a later date.

It is not clear why (K's) case was put into WIPS at this time. However, the Court may wish to note that this date coincides more or less with the announcement of a new system for dealing with the backlog of asylum cases within IND as it then was…”

A Case Resolution Directorate (CRD) had been set up to handle the 400–500,000 cases in the system. Although the intention was to give priority to “initial asylum claims” such as that of K –

“it would not be clear to CRD caseworkers without review of the file that a case was an initial asylum claim.”

9

In other words, K's claim, having been identified in February 2006 as one which needed to be dealt with expeditiously, got lost in the system. There it remained until January 2007, when K's solicitors wrote complaining of the unacceptable delay and threatening judicial review proceedings. The response (dated 19th March 2007) confirmed that the case was covered by the July 2006 policy statement relating to the legacy cases, and that accordingly –

“…I cannot give any indication at this stage when your case will be processed.”

10

It is unnecessary to review the subsequent events in detail. Suffice to say that no further progress had been made by the time the present proceedings were commenced in October 2007. Eventually K was interviewed for his asylum claim on 4 th April 2008, following which a refusal notice was issued. His appeal to the AIT was dismissed on 5 th August, following a hearing in July; an application for reconsideration was refused by the High Court on 27 th October 2008. Finally, as already noted, on 19 th January 2010 the Secretary of State gave notice of the decision to grant indefinite leave to remain (ILR) on compassionate grounds, taking account of the length of time that he had been in the UK, the fact that he was in receipt of support, and his “serious mental health issues”.

K's Mental Health

11

As already noted, K's mental condition is relevant in two respects: first, the claim that the condition...

To continue reading

Request your trial
22 cases
1 firm's commentaries
  • A Defining Moment: Supreme Court Rules On The Territorial Scope Of Powers Under POCA
    • United Kingdom
    • Mondaq United Kingdom
    • 6 Agosto 2012
    ...reason why the whole Act should not have extra-territorial effect and that Parliament must have so intended." (SOCA v Perry & ors [2010] EWCA Civ 907, para 79) During the appeals, SOCA had argued that POCA had extremely wide territorial application: "Parliament has decided that a Chines......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT