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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> SS, R (on the application of) v Secretary of State for the Home Department [2013] EWCA Civ 1715 (25 September 2013)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1715.html
Cite as: [2013] EWCA Civ 1715
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ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(ELIZABETH COOKE)
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE AIKENS
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| THE QUEEN ON THE APPLICATION OF SS | Claimant/Appellant | |
| -v- | ||
| SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant/Respondent |
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Miss K Olley (instructed by Treasury Solicitors) Appeared on behalf of the Defendant/Claimant
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- LORD JUSTICE AIKENS:
- This is an appeal by SS from the order of Deputy High Court Judge Cooke made on 28 June 2013 whereby she ordered, in relation to the long outstanding asylum application of the claimant, that the defendant make and serve and lodge with the court a written decision by 4.00 pm on 2 January 2014. Because this was an application before the Deputy High Court Judge for interim relief there were two further paragraphs in the order. The first was that the claimant, SS, was to notify the court by 4.00 pm on 9 January 2014 whether the claimant's application was to proceed and also there was an order that the papers be put before a judge in the week commencing 13 January 2014.
- SS appeals with the permission of Beatson LJ granted on 19 August 2013.
- The background is as follows. The appellant was born on 1 July 1957 and is an Iraqi national. He entered the UK on 28 August 2006 together with his then wife and also with his daughter. The appellant and his wife have since separated. The appellant and his family came to the UK for medical treatment and they had valid entry clearances for that purpose. On 31 August 2006 the appellant, his wife and his daughter all claimed asylum. The appellant was the principal applicant, with his wife and daughter as dependants upon that application. In October 2006 the appellant withdrew his application for asylum. At that time the appellant's wife then claimed asylum in her own right, together with her daughter as her dependant.
- On 13 December 2006 the appellant wrote to the defendant stating that he had changed his mind and that he did not wish to withdraw his asylum application. On 11 January 2007 the appellant claimed asylum for the second time. The previous application was treated as withdrawn, despite the letter saying that the appellant had changed his mind. The appellant then underwent a screening interview. On 14 February 2007 the appellant underwent a substantive asylum interview in connection with his application.
- Since then he was been waiting for a decision from the respondent. There is a very long history of correspondence since February 2007. There are long periods when the appellant tried to get movement on the part of the respondent, who failed to do anything or even to respond to letters sent. We will not go through this unfortunate history. The plain fact is that the respondent has not dealt with the appellant's application.
- We asked Miss Olley who appeared on behalf of the Secretary of State, whether there was any explanation for this. She said, naturally, that she had sought instructions, but she added that no explanation had been afforded to her. We can only say that it seems to us at this stage of the proceedings that this delay is inordinate and, as things stand at the moment, without any excuse on the part of the respondent.
- Eventually, on 18 June 2012 the appellant wrote to the respondent stating that her delay in considering the asylum application was unreasonable and asking for a decision or alternatively an indication as to how long a decision might take. On 6 November 2012 the appellant sent a letter before action to the respondent asking for the asylum application to be decided within 28 days or else an application for judicial review would be made. On 15 November 2012, the respondent replied and stated that necessary arrangements had been made for the appellant's case to the allocated to a case worker and that the aim was for a decision to be made within 3 months.
- That did not happen. On 25 February 2013, the appellant emailed a final letter to the respondent stating that he would be proceeding with his application for judicial review.
- On 9 April 2013 the respondent wrote to the appellant stating that she aimed to resolve the asylum application within 2 months. On 17 April 2013, the appellant lodged the judicial review proceedings in the Administrative Court on the ground that the respondent's delay in deciding his application had become unlawful. By this time the asylum application had been outstanding for over 6 years.
- On 16 May 2013 the respondent filed an acknowledgement of service. In this the respondent stated that she had agreed to carry out a consideration of the appellant's asylum application within 6 months "barring any special circumstances". On 5 July 2013 Miss Cooke, sitting as a Deputy High Court Judge, made an interim order effectively staying the appellant's application for permission to apply for judicial review until January 2014 on the terms that I have already set out.
- The present appeal by the appellant is against that interim order.
- Since Beatson LJ granted permission to appeal on 19 August 2013, there has been further correspondence between the parties. The appellant requested that the respondent agree to make a decision on the issue of the application for asylum within 4 weeks. On 17 September 2013, the Treasury Solicitor replied on behalf of the respondent re-confirming that the respondent was able to make a decision on this matter by 15 November 2013. That was then confirmed in the skeleton argument that was lodged on behalf of the respondent by Miss Olley on 16 September 2013.
- We have explored that matter further this morning. We asked Miss Olley whether or not the respondent would be prepared to undertake to the court to make a decision by 15 November 2013. We had a short adjournment in order that Miss Olley could take instructions on this matter. She informed us that she had taken instructions and that those instructions were that she was unable to offer an undertaking to the court in those terms. Miss Olley accepted, frankly, that in those circumstances she understood that this court might come to the conclusion that therefore it had to make an order that the decision should be made by 15 November 2013.
- Mr Saeed submitted that that remained the aim of his client and that he would therefore ask this court to make such an order. We think that this submission by Mr Saeed is well-founded and that we should make such an order, and we do so given the circumstances that I have outlined.
- Accordingly, this appeal will be allowed and the defendant will be ordered to make and serve and lodge with the court a written decision on the appellant's asylum application by 4.00 pm on 15 November 2013. In order that the matter may be kept flexible there will also be a paragraph in this court's order that both parties may have liberty to apply.
- Accordingly, on that basis I would allow this appeal.
- LORD JUSTICE MOORE-BICK:
- I agree.