The decision

Heard at Field House Appeal No HX49602-2001
On 22 May 2002 SQ (Delay - Minor) Kosovo CG [2002] UKIAT 02448


Date Determination Notified

9 July 2002


Mr S L Batiste (Chairman)
Mr M L James







1. The Appellant, a citizen of the Federal Republic of Yugoslavia (Kosovo), appeals, with leave, against the determination of an Adjudicator, Mr WL Grant, dismissing his appeal against the decision of the Respondent on 21 August 2001 to refuse to grant asylum. The Appellant was granted exceptional leave to remain in accordance with standard practice, as he was an unaccompanied minor, and his right of appeal against the decision was under section 69(3) of the Immigration and Asylum Act 1999.

2. Mr B Halligan, instructed by Messrs Gadwah & Co, represented the Appellant. Mr J Morris, a Home Office Presenting Officer, represented the Respondent.

3. Mr Halligan said that the Appellant will be 18 on 29th June 2002 and his exceptional leave to remain will then expire. He would not be arguing that the Appellant is traumatised by his experiences in Kosovo, as had been previously suggested. The main issue in dispute is whether the decision reached by the Respondent was in accordance with the law, due to the delay in reaching the decision. The Appellant entered the United Kingdom on 13 August 1998 and claimed asylum the next day. He made a trip to France in 1999 because he heard that his father might have been there. He went to look for him and was away for two weeks. The Adjudicator found that the Appellant had by leaving the UK abandoned his first claim for asylum and then made a new one on his return. That finding is not challenged, but it is argued that even from March 1999, when he returned, the delay in making the decision until August 2001 was too long, in the context of paragraphs 350 and 351 of HC 395 (the Immigration Rules), and paragraph 28 of the UNHCR Handbook. The delay was also in breach of section 6 of the Human Rights Act 1998, which made it unlawful for a public authority to act in a way, which is incompatible with a Convention right. The Respondent did not accord with his own rules and in accordance with paragraph 21 of Schedule 4 of the Immigration and Asylum Act 1999 Act, the appeal must therefore be allowed.

4. He argued further that if the Respondent had acted in a timely fashion, in accordance with the Rules, entitlement to asylum would have been decided on the facts as they were in 1998, when the Appellant arrived in the United Kingdom or 1999, when he returned from France. The Respondent should not be allowed, as a consequence of his delay, to have the benefit of assessing the claim in the changed circumstances at the present time. The appeal both in respect of asylum and Article 3 should be determined on the basis of the facts as they were when the application was made. Thus the grant of exceptional leave to remain in 2001, being based on the facts as at that time, was not in accordance with the law as it should have been based on the facts as at 1998.

5. Mr Halligan also sought leave to argue that paragraph 23 of the determination dealing with the Article 8 claim was in error in that the Adjudicator did not deal with the question of proportionality. However this matter had not been raised in the leave application, was not covered by the grant of leave. Leave had not been sought prior to the hearing, nor had the Respondent been notified that leave would be sought, so that a considered response could be prepared. In these circumstances leave was refused. In any event the Tribunal indicated that in its view the finding by the Adjudicator was that the Appellant had not established evidence that he had private or family life in the UK which would be interfered with by removal. Therefore the question of proportionality did not arise.

6. Mr Morris argued that the delay in dealing with the Appellant's claim was due to the well-publicised problems in the Home Office at that time. The Appellant did receive immediately from arrival all the welfare arrangements that were required. His case did receive in all material respects the priority required under the Rules. This appeal is about returnability now. There was no dispute that in the current circumstances he could now be returned to Kosovo safely. The Respondent had met his obligations by looking after the Appellant to the age of 18. He can now safely be returned. Paragraph 350 does not impose any time limits on the decision-making process itself.

7. The Tribunal reserved its decision.

8. The starting point in assessing whether the Respondent has been in breach of the Rules is to decide what the Rules actually require of him. Paragraphs 350 and 351 of HC395, upon which Mr Halligan relies, state as follows.
"350. Unaccompanied children may also apply for asylum and, in view of their potential vulnerability, particular priority and care is to be given to the handling of their cases.
351. A person of any age may qualify for refugee status under the Convention and the criteria in paragraph 334 apply to all cases. However, account should be taken of the Applicant's maturity and in assessing the claim of a child more weight should be given to objective indications of risk than to the child's state of mind and understanding of his situation. An asylum application made on behalf of a child should not be refused solely because the child is too young to understand his situation or to have formed a well founded fear of persecution. Close attention should be given to the welfare of the child at all times. “

9. Paragraph 350 sets out no specific timetable or time limits. It does not refer to the timing of decisions specifically. It requires that the handling of the cases of unaccompanied minors should be given particular priority and care because of their potential vulnerability. This reference to vulnerability is the context in which the paragraph (and the Respondent’s obligations under it) has to be interpreted, and the key to that interpretation. In reality it does no more than restate, in this specialist field, the general principle in our law that the interests of children have to be given priority. The prime and most urgent need of an unaccompanied minor, coming to the United Kingdom to seek international protection, is to receive proper care. There is no dispute that the Respondent has provided such care in proper response to his obligations. The next need is to ensure that an unaccompanied minor is not returned to his home country, whilst he is a minor, without ensuring that adequate reception facilities are available. Again the Respondent has not acted in breach of this obligation. No removal directions were set, or yet have been, and the Appellant was granted exceptional leave to remain here until his 18th birthday in accordance with published policy. His case and his needs have been given priority and care. It is unfortunate that the well-publicised problems at the Home Office resulted in considerable delays in the asylum decision making process in many thousands of cases. But that delay was not caused by any desire to manipulate the result of asylum appeals and has not caused any failure in the provision of the care required by the Appellant as a vulnerable unaccompanied minor, pending the making of the decision.

10. Paragraph 351 then sets out how the assessment of an unaccompanied minor’s asylum claim should be assessed and the specific protection and allowances needed in that process. Again there is no timetable. It restates that close attention should be given to the welfare of the child at all times. There is no suggestion that the Respondent has not acted properly in accordance with these specific requirements also.

11. In summary, we cannot see anything specific in either of these paragraphs which sets a timetable for completing the decision making process on the claim itself or even deals with this issue, though it does go into detail about how other aspects of the process should be conducted, when it is under way. Nor do we agree with Mr Halligan that a timetable of any kind is implicit in any of the wording of these two paragraphs, sufficient to impose a legal obligation on the Respondent.

12. Of course when the claim does come to be assessed, consideration must be in accordance with the law. The UNHCR Handbook is not however a part of the law of the United Kingdom. In any event paragraph 28 states
"A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognised because he is a refugee.”

13. That is a statement of the obvious. Even if paragraph 28 were a part of our law, it does not require that, at the time recognition and hence status is being considered, it should be done other than on the basis of the facts prevailing at the time of assessment.

14. The issue of timing was however addressed by the Court of Appeal of Appeal in Saad, Diriye and Osorio C-2000-3650. Whilst this was decided under the old law, prior to the 1999 Act, the comments of Lord Phillips MR as to timing are still of assistance. He held
“What emerges from our analysis is that where an appeal is brought under section 8(1) the appeal tribunal will necessarily have to determine the refugee status as at the date of the hearing….. The same is true of an appeal under sub-sections 8(3) and 8(4). In each case the decision facing the Tribunal is the hypothetical one of whether removal would be contrary to the Convention at the time of the hearing – ie on the basis of the refugee status of the Appellant at that time…… The particular position under section 8(2) is perhaps more complex…. In our judgement it is implicit in the test to be applied under Rule 334 that the Secretary of State should proceed on the assumption that the state of affairs prevailing at the time that he makes his decision will persist at the time that any limited leave to remain that has been granted expires.”

15. This extract shows that in all types of asylum appeal the relevant facts have to be ascertained as at the time the decision is made or when it is later reviewed in the appeal process. There is no authority for the proposition that in an assessment of an asylum appeal, whether of an unaccompanied minor or anyone else, the Respondent is under an obligation to assess the facts at the time of the application, rather than the time of the decision. Such a proposition would fly in the face of fairness and commonsense.

16. In this appeal the Respondent made a proper assessment at the time of the decision and this has been reviewed further at the time of both appeals in the light of the facts then pertaining. The Respondent has not acted other than in accordance with the law and the relevant Rules.

17. For the reasons given above this appeal is dismissed.

Spencer Batiste