R (Tekle) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 11 December 2008 |
| Neutral Citation | [2008] EWHC 3064 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/10249/06 |
| Date | 11 December 2008 |
[2008] EWHC 3064 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Blake
Case No: CO/10249/06
Michael Fordham QC and Adam Tear (solicitor advocate)(instructed by Duncan Lewis and Co) for the Claimant
Jenny Richards (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 1st December 2008
The Hon Mr. Justice Blake :
Introduction
The claimant in this case, Mr Tekle, is an Eritrean national who had a mother of Ethiopian nationality and a father who was Eritrean. He applied for asylum in this country in November 2001 claiming to have arrived here on false documents shortly beforehand following the deportation of his Ethiopian mother from Eritrea and the detention of his father as a member of a political movement out of favour in Eritrea. He claimed to have been born in July 1985 but from other data that he supplied about his education, the immigration judge who heard his appeal concluded that he was somewhat older than that and was about 19 in 2002, making him about 25 today.
His application for asylum and human rights protection was dismissed and certified because of his failure to disclose the existence of a false travel document. It was considered on appeal by an immigration judge and dismissed on the 31 st May 2002.
In April 2004, his solicitors made a fresh application for protection based on a UNHCR paper of January 2004 explaining the difficulties that had been faced by young men of mixed ethnicity and of military service age in Eritrea. Further, it has been plain that there are real difficulties in obtaining citizenship and relevant travel documents for Eritrean nationals of mixed ethnicity who cannot present valid Eritrean travel documents to the diplomatic authorities of Eritrea in London. The representations made the point that in 2004 there had been no removals of failed Eritrean asylum seekers to Eritrea in that year.
On the 7 th July 2005 his solicitors sought an update as to what was happening on this fresh claim. They wrote again on the 31 st August 2006 requesting an update and making further submissions in relation to the inability of the claimant to return to Eritrea or to be removed there. They subsequently sent a pre-action protocol letter seeking to challenge the delay in processing the claimant's case. In due course an application for judicial review was lodged but pursuant to the order of Mr Justice Sullivan dated 23 rd May 2007 it was stayed pending the judgment in the Administrative Court in the “legacy test cases” which were due to be heard and determined.
On the 5 th July 2007 Mr Justice Collins delivered his judgment in the case of R (FH and Ors) v Secretary of State for the Home Dept [2007] EWHC 1571 Admin. The judgment in FH deals with the problem that had occurred whereby past inefficiency and inadequate resources in the Home Office had led to a very significant backlog of cases accruing between 1998 and 2006. In paragraphs [13–17] of the judgment the following points are explained:-
i) In 1998 it had been the policy of the government that by April 2001 asylum claims would be dealt with in about 6 months from start to finish.
ii) In 2001 there were arrangements made with the HM Treasury for targets to meet this aim for new cases. Initial decisions in such cases were to be made in 2 months but the result of this was that old cases were put on hold and faced longer delays.
iii) By 2006 a backlog of some 400–450,000 individuals whose asylum claims had failed but who had not left the country had arisen. Included in that number where many whose subsequent applications had not been determined. Subsequent estimates have suggested this figure may be somewhat high.
iv) A statement was made to Parliament in July 2006 to the effect that the government planned to deal with the backlog within 5 years or less. The Home Office would prioritise those who represented a risk to the public then focus on those who can more easily be removed, those receiving support and those who may readily be granted leave. All cases will be dealt with on their individual merits.
v) Following that announcement a scheme of processing backlog clearance cases was established with the four priority groups indicated and a narrowly defined category of exceptional circumstances failing which cases would be determined in order within no defined period but the aspiration was to clear the backlog by 2011.
Although he recognised that the origins of the backlog were a failure by government to administer the system efficiently Mr Justice Collins concluded that it was not for the courts to interfere with the priorities set by the executive with which Parliament must be treated to have been content in dealing with a backlog clearance. There was an implied obligation to deal with asylum cases within a reasonable period of time but what is reasonable depended upon the circumstances, the numbers facing government, the resources and such like. That meant that challenges to the delay in processing cases in the order of three years or so would not be a legitimate ground of challenge and had no prospects of success. At [30] he concluded in the following terms :-
“ it follows from this judgment that claims such as these based on delay are unlikely save in very exceptional circumstances to succeed and are likely to be regarded as unarguable. It is only if the delay is so excessive as to be regarded as manifestly unreasonable and to fall outside any proper application of policy or if the claimant is suffering some particular detriment which the Home Office has failed to alleviate that a claim might be entertained by the court”
(emphasis supplied)
Following the judgment in FH, the Claimant's solicitors wrote on the 7 th August 2007 to the effect that the claimant had been living in the United Kingdom for a considerable period of time without access to funds and living off the goodwill of others and that the application was now made to vary the conditions of his temporary admission to include permission to work.
On 8 th October 2007 the Home Office had written to the claimant's solicitors acknowledging his submissions about the ability to voluntarily return or be removed to Eritrea, but stating in the standard terms of their response letter to such cases
“in the light of the above and having carefully tested the merits of your client's application taking into account the aforementioned submissions and individual facts of his case it had been decided in the circumstances your client has raised are not exceptional. The problems your client claims to experience does not render his claim exceptional as other applicants awaiting a decision are also experiencing such conditions. I cannot therefore give any indication at this stage when your client's application for further leave to remain will be actioned. Your client's immigration status and any entitlements in this country will remain unchanged until such time as a decision is made on any applications or representations that may be outstanding in his case”.
In respect of the application to work the Home Office replied:
“I am sorry to inform you that we are unable to grant the applicant permission to work at this stage therefore your client may not take employment in the United Kingdom, nor may your client be self employed or engaged in business or professional activity”.
In November 2007, the solicitors pointed out that in the Home Office statistics for 2006 once again there were no removals of Eritrean nationals to Eritrea. It was further submitted:
“if the claimant cannot be removed some form of leave is given to the claimant pending a change in his situation. The claimant cannot simply be left to his own devices in the United Kingdom without any further assistance when he cannot return to Eritrea voluntarily if he wanted to nor could he be returned there. The claimant is in a true state of limbo. This is an issue that the defendant's policy on dealing with incomplete asylum applications has failed to consider properly. The claimant is not in receipt of support and is fending for himself for an indeterminate period of time.”
On the 14 th November 2007 Mr Justice Sullivan refused the claim for judicial review of priority treatment.
On the 15 th May 2008 on a renewed application for permission to seek judicial review the application was refused by Mr Justice Collins in respect of the challenge to the defendant's four year failure to determine the fresh claim but granted in respect of the challenge to the decision refusing permission to work.
In the amended grounds in support of such a challenge reliance was placed on paragraph [29] of the decision in FH where Mr Justice Collins himself said
“since a substantial delay is at least for the next 5 years or so likely to occur in dealing with cases such as these steps should be taken to try and ensure that so far as possible claimants do not suffer because of that delay”.
(emphasis supplied)
On the 5 th June 2008 following the grant of permission and the request by Mr Justice Collins that the matter be further considered, the Home Office drew attention to paragraph 360 of HC 395 which provides:
“ Right to Request Permission to Take up Employment
An asylum applicant may apply to the Secretary of State for permission to take up employment which shall not include permission to become self employed or to engage in a business or professional activity if a decision at first instance...
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