UK - Court of Appeal, 25 February 2010, MK (Iran), R (on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 115

Facts:

The applicant was an Iranian asylum seeker who claimed damages as a result of delays in assessing his application. He claimed asylum in September 2004, aged 16 and unaccompanied. The Secretary of State disputed his age and sought to remove him, under the Dublin Regulation, to Greece. After an age assessment the United Kingdom assumed responsibility for examining his asylum claim. However, no action was taken to progress the examination. He alleged that the delay caused a deterioration in his mental health and caused him to lose the benefit of a period of lucidity during which he would have been able to convincingly put forward the facts of his claim. His asylum application was eventually refused in 2008 and an appeal against the refusal was dismissed. He was granted indefinite leave to remain on compassionate grounds in January 2010.

The applicant claimed damages on the basis of the delay in considering his asylum application.

Decision & reasoning:

The Court held that, by July 2006, the delay in considering the applicant’s asylum application had become unreasonable and therefore unlawful under common law.  However the applicant was not able to prove that there had been a period of lucidity during which he would have been able to convincingly put forward the facts of his claim. The Court did accept that there may have been a deterioration in the applicant’s mental health caused by the delay in assessing his asylum application but it was highly likely that the evidence was insufficient to make out this part of the claim. Consequently the claim should be dismissed on its facts. 

The applicant had also argued that the Secretary of State was liable, as a result of the delay, for potential damages in EU Law.; This liability was created by reading Art 16(1)(b) of the Dublin regulation, which provides that a member state deemed responsible under the Regulation “complete the examination of the application for asylum”, alongside Art 13 of the Qualification Directive (the obligation to grant refugee status) and Art 47 of the Charter of Fundamental Rights (right to a fair hearing in a reasonable time).  The Court rejected this argument finding that “[t]he regulation is concerned with the allocation of responsibility as between states, not the creation of personal rights”.

Finally, the applicant argued that Art 13 of the Qualification Directive created an obligation in EU law to grant refugee status and the rights attendant upon it to those who were so entitled.  Refugee status under the Directive should therefore be considered a civil right, protected by Art 6 of the ECHR.  The European Court of Human Rights caselaw, which excluded immigration matters from the ambit of Art 6, should therefore be distinguished.  The Secretary of State could be liable in damages for the delay which breached Art 6.  The Court rejected this argument on the basis of House of Lords authority not to depart from European Court of Human Rights rulings or to move ahead of its jurisprudence.  However, Lord Justice Sedley observed that the argument “on the Qualification Directive seems to me a powerful one which is capable of changing the decided or assumed relationship of Art 6 to asylum claims”.

Outcome:

Appeal dismissed.