United Kingdom – Upper Tribunal rules on lawfulness of asylum procedures delays

Wednesday, August 22, 2018

On 22 August, the UK Tribunal (Immigration and Asylum Chamber) delivered a judgment on the lawfulness of the delayed processing of an asylum request made by a minor national of Afghanistan. The case concerned the application lodged by the minor in October 2016, after being reunited in the United Kingdom with his uncle.

The child arrived in the country in the context of Operation Purnia, an expedited process designed to facilitate transfer of children who had family in the UK from the Calais camp to the UK. The applicant’s asylum interview took place in May 2017, after the initial interview in March had been cancelled. In the following months, the applicant’s solicitors made numerous attempts to expedite the process, without any result. Finally, a claim was lodged with the Upper Tribunal against the delay in February 2018.

The Tribunal started by confirming the lack in national law, of specific time limits during which the authorities have to decide on asylum applications, allowing thus for ad hoccircumstances to excuse delays. Nevertheless, the Judge analysed the relevant case law and concluded that courts should consider the rationality of the context that prompted delays in an administrative procedure. In addition to that, the fact that the applicant in question was a minor during the entirety of the proceedings carried decisive weight in the Tribunal’s overall assessment.

In this vein, the Court reiterated the primary status reserved for the “best interests of the child” principle in all State actions concerning children, as enshrined in the UN Convention on the Rights of the Child, as well as in UK child-related legislation and policy guidance. More specifically, the Judge stated that Section 55 of the 2009 Borders, Citizenship and Immigration Act, regarding the welfare of children in asylum proceedings, gives rise to a statutory duty. As such, the authorities’ main consideration should have been to minimise the uncertainty any delay may cause to a child.

As the total delay amounted to more than 21 months since the lodging of the application, the Judge found it to be so excessive as to be considered as manifestly unreasonable and, therefore, unlawful. Several factors were noted in the context of this assessment, including the authorities’ failure to properly inform, as well as the real impact of the delay on the child. Notably, the Judge expressly took the applicant’s status as a separated child into special consideration, despite benefitting from his uncle’s care.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.




Best interest of the child
Child Specific Considerations