Queen’s Bench Division
Regina (MK) v Secretary of State for the Home Department
[2019] EWHC 3573 (Admin)
2019 Dec 10, 11; 20
Saini J
ImmigrationAsylumUnaccompanied childTwo-year delay in determining claimant unaccompanied child’s asylum claimClaimant seeking judicial review alleging administrative scheme systemically unlawful in failing to ensure fair and lawful system for determination of claim within reasonable timeEvidence adduced of delays in processing such claims having significant impact on children’s mental healthWhether evidence entitling court to drawing inferences as to nature and effectiveness of Government’s processes

The claimant, a Sudanese national born in 1999, was transferred to the United Kingdom in 2016 as part of the Secretary of State’s Operation Purnia, the scheme by which the Calais refugee camp was to be cleared. On his arrival in the United Kingdom the claimant, an unaccompanied child, claimed asylum. After almost two years his claim had not been determined and he sought judicial review, seeking, inter alia, a declaration that the Secretary had failed and was failing to ensure a fair and lawful system for the determination of asylum claims by unaccompanied asylum-seeking children because the system failed to ensure that decisions on claims were provided within a reasonable time. His claim for asylum was granted a month after the judicial review claim was issued. A substantial volume of written evidence was presented to the court by the parties.

On the claim—

Held, claim dismissed. There was no legislative provision, whether under domestic or European Union law, specifying a particular time limit within which an asylum claim had to be determined but there was an implicit reasonable time limitation. The evidence presented to the court established that there had been concerns about delay in dealing with unaccompanied asylum-seeking children cases for some time, and indicated that delay had a significant impact on children’s mental health. However, the evidence did not enable the court to infer systemic failure of the Government’s processes for dealing with claims for asylum by unaccompanied children, such as to render them unlawful. It did not identify any safe average time for the processing of such cases, which were cases which might be more complex than adult cases. The fact that an administrative system was not operating as well or efficiently as the Government, the public or the courts might wish did not in and of itself amount to unlawfulness as alleged. That might be the case if the public body in question refused to recognise the problems or to consider whether steps could be taken to institute improvements. But in the present case not only had the Secretary of State acknowledged that decisions had taken longer than was desirable, she had taken action to institute a comprehensive review and consultation with a view to reforming the system of decision-making in asylum cases. In the meantime, an interim system of prioritisation had been introduced. It would be wrong, in principle, for the court to impose impossible or impracticable standards, or hold that the Secretary of State was acting unlawfully, when she was taking reasonable steps to improve the efficiency of a complex operational system in the face of increasing demand. The claimant’s core submission that unaccompanied asylum-seeking children cases should be decided within a shorter timescale than asylum claims by adults or families could not be accepted because striking the appropriate balance between speed and safeguards, in an area where best interests considerations as well as specific procedural protections were in play, might require that more time was allowed for various stages of the decision-making process. There was a careful balance to be struck between speed and safeguarding, an area in which views might reasonably and legitimately differ; indeed, the Secretary of State had been consulting stakeholders on that very question. The Secretary of State had rational procedures and policies in place to respect her obligations in international and domestic law to unaccompanied asylum-seeking children and had devoted resources which appropriately recognised those obligations. The fact that one would hope to process such applications more rapidly for obvious humanitarian reasons and the fact there were clear delays did not mean that the past and current systems were unlawful in public law. Further, many of the special protections for the welfare of unaccompanied asylum-seeking children were important to the issue of delay, as certain key stages were out of the control of the Home Department (paras 17, 22, 24, 31, 41, 54, 55, 86, 87, 98-101, 120, 121).

R (Woolcock) v Secretary of State for Communities and Local Government [2018] 4 WLR 49, DC applied.

Martin Westgate QC and Leonie Hirst (instructed by Deighton Pierce Glynn llp) for the claimant.

Lisa Giovannetti QC, David Manknell and Jo Moore (instructed by Treasury Solicitor) for the Secretary of State.

Catherine May, Solicitor

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