News

On 22 June 2018, we published an article regarding the Court of Appeal’s judgment in AL (Albania) v SSHD [2018] EWCA Civ 1183 which confirmed that public funding was being sought to challenge the Court of Appeal’s decision in the Supreme Court. The purpose of the following article is to provide an update, especially in view of the fact that this case has profound implications for the future of publicly funded cases, in particular those involving vulnerable asylum-seeking children.

Since June, there has been progress in favour of AL’s funding appeal. Although the Legal Aid Agency (LAA) refused to grant public funding of AL’s proposed application for permission to appeal to the Supreme Court, in a decision dated 9 November 2018, the Special Controls Review Panel (SCRP) allowed AL’s funding appeal in full.

Following the granting of public funding by the LAA on 14 November 2018, AL’s application for permission to appeal was issued in the Supreme Court on 11 December 2018.

Pending consideration of the permission application, AL’s legal team invite submissions in the public interest in support of AL’s claim from any relevant persons or authorities in light of the anticipated effect the result will have on publicly funded litigation across England and Wales.

We invite potential interested parties to contact Trevor Hatton, trevorh@duncanlewis.com, by the end of January 2019.

Representation

AL is represented by Trevor Hatton, Director of Duncan Lewis’ Public Law and Immigration team in Croydon and further instructed by Junior Counsel, Greg O Ceallaigh of Garden Court Chambers and Senior Counsel, Stephen Knafler QC of Landmark Chambers.

Summary of the facts of this case

AL originally claimed asylum in the UK as a child. AL expressly claimed asylum on the same basis as his older brother, who had already been granted full refugee status in this country before AL’s arrival.

We therefore expected the Respondent to issue a decision on AL’s asylum claim very quickly, especially because at the time that AL claimed asylum (on 24 December 2014) the Respondent’s then extant policy (“Processing an asylum application from a child” published 7 March 2007, updated 16 April 2013), confirmed that all asylum claims made by children should be processed within 35 days.

However, in November 2015, 11 months after AL claimed asylum, no decision was forthcoming. On this basis, letters before claim were submitted to the Respondent, asserting that in the absence of a countervailing reason, the delay was unlawful. A decision was sought within a specified time period of no more than 28 days.

In their substantive response of 24 November 2015, the Respondent neglected to provide a reason for the delay, instead asserting that a further 6 months of consideration time was required. No supporting reason for this additional consideration time was provided.

Accordingly, Judicial Review proceedings were issued on AL’s behalf on 21 December 2015.

Three months later, on 2 March 2016, the Respondent belatedly provided a reason for their delay, in their Summary Grounds of Defence. The Respondent claimed that they needed to investigate the underlying circumstances in which AL’s older brother had been granted refugee status before a decision could be issued on AL’s outstanding asylum claim.

Just one month later, the Respondent belatedly issued their substantive decision regarding AL’s asylum claim, on 1 April 2016.

Although the underlying Judicial Review claim was subsequently settled by way of consent between the parties, having been rendered academic by the Respondent providing the very remedy sought by the issuing of proceedings, the issue of costs was determined by a single Judge on consideration of the papers.

In an order for costs dated 20 July 2016, the Upper Tribunal held that the Respondent should be awarded their costs in the sum of £1760.00 on the basis that “the proceedings did not achieve anything for the applicant” and that “The Secretary of State made a decision within the time promised and was entitled to take the time necessary in order to come to a rational and reasoned conclusion on a consideration of all the evidence obtainable”.

An application for permission to appeal to the Court of Appeal was subsequently filed in the Upper Tribunal in order to challenge the above decision, and exceptionally, the Upper Tribunal granted permission to appeal to the Court of Appeal in a decision dated 17 October 2016.

Due to a lack of judicial availability, the substantive hearing did not take place before the Court of Appeal until 17 May 2018. In a subsequent Judgment and Order dated 24 May 2018, the Court of Appeal dismissed AL’s appeal in full, upholding the Upper Tribunal’s original costs order in the sum of £1760.00 as well as ordering AL to pay further costs to the Respondent in the sum of £20,500.00 occasioned during the course of the Court of Appeal proceedings.

Summary of the Court of Appeal’s decision

The Court of Appeal made the following six findings of significant wider public impact:

1. The Court considered that had AL’s Judicial Review claim proceeded to a full substantive hearing instead of being settled by way of consent between the parties, the Respondent would have been able to demonstrate that he had not acted unreasonably in delaying reaching a decision upon AL’s asylum claim;


2. Although the Court found that a substantive decision had been issued in respect of AL’s asylum claim “a little earlier” as a direct result of Judicial Review proceedings being issued, the Court upheld the Upper Tribunal’s original decision that the proceedings had not achieved anything for the Appellant;


3. The Court held that the Respondent had not delayed unlawfully in issuing their decision on AL’s asylum claim (a total period of 16 months from start to finish) because of the Respondent’s need to make necessary checks prior to issuing their decision;


4. The Court held that the fact the Appellant had been a child at the time he lodged his asylum claim was irrelevant;


5. In spite of the fact that the Respondent had failed to disclose any reason for their delay in processing AL’s asylum claim (until 3 months after the issuing of Judicial Review proceedings), the Court of Appeal expressly held that AL was not legally entitled to be so informed;


6. The Court of Appeal held that the fact AL was publicly funded made no difference to the issue of determining whether there was any principled reason to award him costs.

Summary of the substance of the Appellant’s appeal

As a direct result of the six key findings made by the Court of Appeal, this case raises the following six issues in the significant wider public interest:

1. The Court has arguably erred in its consideration of whether AL was the successful party. In insisting upon conducting a summary trial of whether AL would have been successful had his Judicial Review claim proceeded to a full substantive hearing, the Court has arguably acted incompatibly with M v London Borough of Croydon, which confirms the correct approach in determining the issue of costs is not to establish how the case would have been decided had it proceeded to trial, but rather to establish whether the Appellant obtained the relief he sought. In view of the fact there is a powerful divergence between the costs principles espoused in the present case and the above case, it is in the public interest for the Supreme Court to determine which is the preferred approach;


2. On the evidence presented before the Court of Appeal, the Respondent expedited their consideration of AL’s asylum claim as a direct result of Judicial Review proceedings being initiated. Accordingly, it is in the public interest for success to be determined by reference to the result as it has occurred, rather than on the basis of a hypothetical examination of what might have occurred had the case proceeded to a substantive hearing;


3. The Court’s unequivocal finding that a delay of some 16 months in processing an asylum claim made by a child is not unlawful, is arguably incompatible with the cumulative weight of authorities on this issue, including, but not exclusively confined to, the Qualification Directive, the Asylum Procedures Directive, the Respondent’s own published policy (“Processing an asylum application from a child”), the UN Convention on the Rights of the Child (UNCRC), the EU Charter on Fundamental Rights, Rule 333A of the Immigration Rules etc. In light of these authorities, we consider it overwhelmingly in the public interest for children’s asylum claims to be processed as expeditiously as possible;


4. The Court’s finding that the fact AL was a child when he originally claimed asylum is irrelevant, is deeply disturbing. Although AL turned 18 before the Respondent finally reached a decision on his asylum claim, this in no way detracts from the fact that whilst AL was still a child the Respondent was legally obliged to consider the impact upon his welfare when placing consideration of his asylum claim on hiatus whilst further enquiries were made regarding AL’s older brother’s successful asylum claim. To assert otherwise, as indeed the Court of Appeal has done, means that the Respondent can ignore their statutory duties owed to children under section 55 of the Borders, Citizenship and Immigration Act 2009 by simply doing nothing and waiting for them to attain the age of majority. It can be considered fundamentally counter to the public interest to permit the Home Office to swerve their statutory duties owed to children in this manner;


5. The Court of Appeal’s finding that the Respondent is under no duty to account for delays in processing asylum claims is exceedingly unpalatable, especially in relation to cases involving children. Effectively, this means that the legal representatives of asylum-seekers are now forced to litigate in the dark, as in the absence of a duty of disclosure, there is no way legal representatives can make an informed decision as to whether or not the delay is arguably unreasonable. In our view, the approach adopted by the Court of Appeal is incompatible with both the powerful duty of candour owed by public authorities and the Pre-Action Protocol for Judicial Review which expressly requires full and frank disclosure on the part of respondents for the purpose of avoiding future litigation. Accordingly, it is in the public interest for the public authorities to be required to justify the position they have adopted at the pre-action protocol stage. This inevitably has the added benefit of saving considerable time and public expense by reducing the number of contested cases brought before Court and Tribunal alike;


6. Finally, the Court of Appeal’s finding that the fact that AL was publicly funded is irrelevant for the purpose of determining the issue of costs is not borne out by existing jurisprudence, especially in view of the fact that in the recent case of ZN (Afghanistan) v SSHD, the Court of Appeal expressly held that the fact a person is legally aided is a matter which should be taken into account when deciding whether or not a costs order should be made, in express recognition of the fact that unless costs are awarded on an inter partes basis in appropriate cases, publicly funded practices would soon be unsustainable and access to justice compromised more widely. In our view, this is a case in which inter partes costs should have been awarded in the Appellant’s favour, especially in view of the fact that the Respondent made a very conscious decision prior to the issuing of Judicial Review proceedings not to disclose any form of reason or explanation for their delay in issuing a decision on a child’s asylum claim.

The Way Forward

For the reasons given above, we expressly invite submissions in the public interest in support of this Appellant’s application for permission to appeal to the Supreme Court, from any person and in particular, any official body or non-governmental organisation, in light of the profound implications which this case may have to the future of publicly funded litigation in this country, especially those cases involving vulnerable asylum-seeking children.

Any potential interested parties who wish to make submissions are requested to contact Trevor Hatton directly by way of email at trevorh@duncanlewis.com by the end of January 2019.

In the interim, we would advise those with fact similar cases to apply for a stay of their proceedings pending the outcome of the Supreme Court’s consideration of this case.