JR-2025-LON-001849

• Status of case: Unreported
• Hearing date: 16 Feb 2026
• Promulgation date: 5 Mar 2026
• Publication date: 10 Mar 2026
• Last updated on: 10 Mar 2026

The decision

JR-2025-LON-001849

In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review


In the matter of an application for Judicial Review



The King on the application of




AA
(Anonymity Order made)



Applicant

versus





Secretary of State for the Home Department



Respondent

ORDER



BEFORE Upper Tribunal Judge Kebede

HAVING considered all documents lodged and having heard Ms Dirie of counsel, instructed by Taylor Rose Solicitors for the Applicant and Mr M Biggs of counsel, instructed by GLD, for the Respondent, at a hearing on 16 February 2026

IT IS ORDERED THAT:

(1) The application for judicial review is dismissed for the reasons provided in the attached judgment.

Costs
(2) The Applicant shall pay the Respondent’s reasonable costs of these proceedings, to be assessed on the standard basis if not agreed, for the reasons given in the attached judgment.

Permission to appeal to the Court of Appeal

(3) The Applicant has not made any application for permission to appeal to the Court of Appeal. Permission would be refused in any event, on the basis that there is no arguable error of law in the decision.

Signed: S Kebede
Upper Tribunal Judge Kebede

Dated: 5 March 2026


The date on which this order was sent is given below


For completion by the Upper Tribunal Immigration and Asylum Chamber

Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 05/03/2026

Solicitors:
Ref No.
Home Office Ref:


Notification of appeal rights

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).


Case No: JR-2025-LON-001849
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

5 March 2026

Before:

UPPER TRIBUNAL JUDGE KEBEDE

- - - - - - - - - - - - - - - - - - - -

Between:

THE KING
on the application of

AA
(Anonymity Order made)
Applicant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -

Ms U Dirie, Counsel
(instructed by Taylor Rose Solicitors), for the applicant

Mr M Biggs, Counsel
(instructed by the Government Legal Department) for the respondent

Hearing date: 16 February 2026

- - - - - - - - - - - - - - - - - - - -

J U D G M E N T

- - - - - - - - - - - - - - - - - - - -

Judge Kebede:


1. In this application for judicial review, the Applicant seeks to challenge the Secretary of State’s failure to decide his outstanding protection and human rights claim, made on 1 August 2020.

Background

2. The Applicant is a national of Egypt, born on 10 November 1980. He arrived in the UK on 1 August 2020 and claimed asylum. He was interviewed about his claim on 5 September 2022 and on 1 September 2023 his claim was refused. He brought an appeal in the First-tier Tribunal (FTT) against the refusal decision. On 29 August 2024, in a Respondent’s Review, the Respondent confirmed that her decision of 1 September 2023 was withdrawn on the following basis:

“1. The Respondent has withdrawn the Refusal Letter (RFRL) dated 1st September 2023.

2. The Respondent proposes to arrange a grant of refugee leave for the Appellant subject to any necessary checks. Considering this the Respondent requests that the Tribunal treat the appeal as withdrawn in accordance with r.17(2) of the procedure rules.

3. The Respondent acknowledges and apologises for the late response.”

3. On 7 October 2024 the appeal was deemed to be withdrawn by the FTT in light of the withdrawal of the 1 September 2023 decision. The Applicant then wrote to the Respondent requesting a decision on his claim.

4. On 31 October 2024 the Applicant sent a pre-action protocol letter to the Respondent challenging the time taken to make a new decision on his claim. The Respondent replied on 12 November 2024, stating that she aimed to make a decision within four weeks, absent special circumstances.

5. On 3 December 2024 the Applicant was arrested on suspicion of committing a fraud offence and was placed on police bail. He applied for a travel document on 10 December 2024, but that application was refused on 18 January 2025.

6. On 23 December 2024 the Applicant wrote to the Respondent asking for a decision on his asylum claim. On 31 December 2024 the Respondent replied, stating that the asylum claim had been “escalated”. On 15 January 2025 a member of the Asylum Casework Team explained that the Applicant “has a pending prosecution, the outcome of which is material to their claim”, so that a decision would not be made on the claim for the time being. A similar letter was sent to the Applicant’s solicitors on 20 January 2025, referring to the Respondent’s policy.

7. On 22 April 2025 the Applicant sent a pre-action protocol letter challenging the Respondent’s conduct on the basis of the time taken to make a decision on his asylum claim. The letter enclosed evidence and claimed that the Applicant had high blood pressure, ulcerative colitis, suspected fibromyalgia and depression and anxiety which conditions were said to be exacerbated by the delay in deciding his claim. It was also argued that his wife and children were being adversely affected by the delay.

8. The Respondent replied on 6 May 2025, informing the Applicant that she was unable to decide the application for the time being because there was a pending prosecution in the light of his arrest on 3 December 2024. It was also explained that, in view of his circumstances, and subject to matters beyond the Respondent’s control, the Respondent would aim to make a decision within 12 months of the letter.

Judicial Review Claim and Grounds

9. On 9 June 2025 the Applicant filed his claim for judicial review, on the following grounds: firstly, that the refusal to make a decision on his asylum claim, citing a pending criminal prosecution, was irrational and in breach of the Respondent’s own guidance; and secondly, that the Respondent’s ongoing failure to provide a decision on the Applicant’s asylum claim constituted an unlawful “manifestly unreasonable” delay in all the circumstances.

10. In support of his claim, the Applicant produced a statement dated 4 June 2025 in which he set out the circumstances leading to his claim, the delay in obtaining a decision in his asylum claim and his attempts to chase the Respondent for a decision, and the impact the delay had had on him and his family. He stated that he had developed severe mental health conditions, including major depressive disorder and generalised anxiety, as a result of the delay and was under medical care and had been prescribed Sertraline. He had also been diagnosed with fibromyalgia and had experienced suicidal ideation. He stated that his eldest daughter had been discovered by her school to be contemplating suicide, his second daughter had been self-harming and his wife was in a state of chronic depression. He claimed that he and his family had been subjected to prolonged psychological harm.

11. On 3 July 2025 the Respondent filed and served her acknowledgment of service and summary grounds of defence, defending her position.

12. Permission was granted on 30 July 2025 by Upper Tribunal Judge Kamara, on the following basis:

“(2) It is arguable, given that the allegation concerns at most an allegation of fraud by failure to disclose and/or working without permission and that charges have yet to be brought, that the refusal to decide the applicant’s claims is irrational and a breach of the respondent’s guidance, “Pending prosecutions”, Version 5.0, dated 18 November 2024. It is certainly arguable that even if convicted the applicant would not be facing exclusion from the Refugee Convention under Article 1 (F).

(3) It is further arguable that the overall delay is manifestly unreasonable in the circumstances faced by the applicant and his dependants which include the applicant’s own mental and physical health, evidence of which has been enclosed in the application as well as the vulnerability of his wife and two of his daughters, referring to the detail of their circumstances which are set out in the grounds. “

13. On 4 August 2025 the Applicant was charged by the police with an offence contrary to section 106 (1)-(2) of the Immigration and Asylum Act 1999, on the following basis:

“Between 01/06/2021 and 30/11/2024 at Walsall in the county of West Midlands, with a view to obtaining any benefit or other payment or advantage for yourself or another under Part VI of the Immigration and Asylum Act 1999, namely your circumstances or your dependants’ circumstances changed from those stated in your support application form (ASF1), dishonestly failed to notify a change of circumstances when required to do so in accordance with a provision made by or under Part VI of the Immigration and Asylum Act 1999, namely and you failed to notify the required authority of this change.
Contrary to section 106(1) and (2) of the Immigration and Asylum Act 1999.”

14. The Applicant then filed and served an application seeking permission to rely upon amended grounds of claim, on 15 August 2025. The amended grounds, which differ only slightly from the original grounds, were as follows: firstly, that the refusal to make a decision on his asylum claim, citing a pending criminal prosecution, was irrational and in breach of the Respondent’s own guidance; and secondly, that the Respondent’s ongoing failure to provide a decision on his asylum and human rights claims of 1 August 2020 constituted an unlawful, “manifestly unreasonable” delay in all the circumstances and/or he was suffering a “particular detriment” because of the delay.

15. In relation to the first ground, the Applicant asserted that the Respondent had not provided any, or any adequate, reasoning to justify her contention that “the outcome [of the prosecution] is material to your claim”. The Applicant asserted that in the context of a prosecution which was an offence under s.106 Immigration Act 1999 relating to dishonest representations for asylum support, the maximum custodial sentence for summary conviction would be six months: s.106(2)(a) IAA 1999. While it was up to seven years for conviction on indictment (s.106(2)(b)), there was no suggestion that the charge was not suitable for summary trial and sentence. Accordingly, the alleged crime was not so severe as to warrant possible exclusion under Article 1(F) of the Refugee Convention and the potential sentence did not meet the definition of a “particularly serious crime” in section 72 of the Nationality, Immigration and Asylum Act 2002 and would likely have no impact on the outcome of the asylum claim. It was asserted further that there was no indication that – in the alternative, pursuant to the policy – the Respondent had evaluated whether or not there were “very compelling individual circumstances”, in light of the evidence of the Applicant’s ill-health and that of his family members, including the best interests of the children.

16. In relation to the second ground, the Applicant asserted that the length of consideration by the Respondent – just under five years in total – had become manifestly unreasonable and unlawful. It was asserted that the Applicant was suffering a particular detriment, and was significantly vulnerable owing to his precarious physical and mental health, as were his wife and two daughters.

17. The Respondent filed and served her Detailed Grounds of Defence on 15 October 2025, in which she relied upon a witness statement from Philip Mount, a Senior Caseworker for Children’s and Secondary case Progression Unit (“CSCPU”) and responsible for the administrative progression of asylum cases, where an explanation was provided as to why the Applicant’s asylum claim was put on hold pending his prosecution. The Respondent asserted, with regard to ground one, that the Applicant was wrong to claim that the relevant polices, “Pending prosecutions” version 5 (18 November 2024) (“the PPG”) and “Pending prosecutions in Asylum Claims” version 2.0 (19 January 2023) (“the PPACG”) did not justify the hold on the decision on his asylum and human rights claims following the 29 August 2024 withdrawal of the 1 September 2023 decision on that claim, since there was a possibility that he might be sentenced to more than 12 months’ imprisonment, so that section 72 of the NIAA might apply in the light of the outcome of the pending prosecution. The Respondent asserted that the possibility of a 12 month or longer sentence could not now be disputed given that the Applicant’s case had recently been sent to the Crown Court for trial. With regard to ground two, the Respondent asserted that the time taken to decide the Applicant’s asylum and human rights claims (and the decision to continue to place them on hold for the time being) was not manifestly unreasonable or otherwise Wednesbury unreasonable or unlawful.

18. On 16 December 2025 the Applicant made further submissions, following a further change of circumstances, namely his plea of guilty to the criminal offence with which he had been charged on 4 August 2025. The basis of the plea, as signed on 3 December 2025, was set out as follows:

“The defendant pleads guilty to:

• Failing to notify a change of circumstances (1st June 2021 to 30th November 2024)

On the following basis:

1 The defendant’s claim for asylum is genuine and was from the outset.
2 He had four children and a wife when he made a claim. Subsequently he had a fifth child and the benefit was reassessed and continued.
3 He was authorised to work. He did work, but it was not cash in hand or hidden. He initially worked for registered employment agencies and then in late 2024 (the last 2 months of the indictment) incorporated a business which is registered with Companies House. He has submitted P60 tax returns. All work payments were made to his registered bank accounts.
4 He was eligible for payments but accepts an overpayment would have been made, given his failure to correctly notify the proper authority.”

19. It was asserted that the Respondent had still failed to provide an adequate explanation for the ongoing delay and for the basis upon which she was contending that the Applicant was facing a charge of “serious fraud”, as distinct from a specific offence of dishonest representation within the context and meaning of the Immigration and Asylum Act 1999. It was asserted that the asylum support prosecution under s.106(1)(c) Immigration and Asylum Act 1999 could not be characterised as a “serious fraud”. A response was also provided to Philip Mount’s statement, asserting that the statement confirmed that no consideration had been given, prior to the claim for judicial review, to the Respondent’s discretion to make a decision on the asylum claim notwithstanding there was a pending prosecution and that there was no indication that the Respondent had evaluated whether or not there were “very compelling individual circumstances”, in light of the evidence of the Applicant’s ill-health and that of his family members, including the best interests of the children.

20. Both parties filed skeleton arguments for the hearing, which was then listed before me.

Hearing and submissions

Preliminary matters

21. The current position, as at the hearing, was confirmed to be that the Applicant awaits sentencing, in the Crown Court, for a single charge under section 106 of the Immigration and Asylum Act 1999, for which he has entered a guilty plea. That follows a hearing in the Magistrates Court on 2 September 2025 where the case was transferred to the Crown Court at Wolverhampton and a plea and trial preparation hearing took place on 30 September 2025 at which the date for sentencing was set. The original date in January 2026 was adjourned to await a pre-sentencing report and has now been set for 26 March 2026. With regard to the “Basis of Plea” document dated 3 December 2025, it was accepted that the plea had been accepted on the basis set out in that document, to the extent that Mr Biggs had no instructions to suggest otherwise.

22. The Applicant was seeking to rely upon a Pre-Sentence Report completed on 27 January 2026 and an application to admit the report had been made and not opposed by the Respondent. I admitted the report.

23. A preliminary issue relevant in particular to the second ground arose from the apparent absence, in the Respondent’s grounds of defence and skeleton argument, of an answer to the challenge to the delay in considering the Applicant’s human rights claim. The Respondent’s grounds of defence and skeleton argument relied upon the guidance “Pending prosecutions” version 5 (18 November 2024) (“the PPG”) and the guidance “Pending prosecutions in Asylum Claims” version 2.0 (19 January 2023) (“the PPACG”) which addressed the issue of delay in deciding the asylum claim but did not address the human rights claim. That was a matter I raised myself at the commencement of the hearing, as I believed it to be a relevant consideration which needed to be addressed. Mr Biggs sought, throughout the hearing, to obtain instructions on the matter, but was unable to do so and therefore requested time for further, written submissions to be made after the hearing. His request was granted and directions were made to that effect.

Submissions

24. Both parties made detailed submissions before me, relying upon their respective skeleton arguments. I heard submissions on the first ground initially, in the hope that Mr Biggs would manage to obtain instructions for the second ground in the meantime. When it was clear that he was not going to do so, I then heard submissions on the second ground. I have since received the further written submissions from Mr Biggs, in accordance with the directions I made at the hearing, with a response from the Applicant’s solicitor and a reply from Mr Biggs. All of those submissions have been considered and can be summarised as follows.

Ground One

25. Ms Dirie relied, in addition to the skeleton argument, upon the Applicant’s amended grounds of claim and the further submissions of 16 December 2025, as well as the Pre-Sentence Report. She set out the background to the claim and the attempts made by the Applicant’s representatives to chase the Respondent and to elicit a decision in his asylum claim. With regard to the first ground, Ms Dirie referred to the two policy guidance documents, the PPG and the PPACG, in regard to the action to be taken by the Respondent when there was a pending prosecution and the staged approach that was to be taken. She submitted that the crime to which the Applicant had pleaded guilty was not a particularly serious crime and that it had no impact on his asylum claim given that the Respondent had already conceded that he met the requirements for a grant of refugee status. She submitted, with reference to the Pre-Sentence Report, that the Applicant was accepted as being of good character and as having genuine remorse and having made a mistake, and that the report noted his ill-health and the impact of a custodial sentence. There were no sentencing guidelines for the Applicant’s offence and the nearest guidelines were therefore considered. The author of the report suggested the imposition of a community order for 12 months. Ms Dirie submitted that the report vindicated the Applicant’s position and made it clear that he was not a person who would ever be caught by section 72 of the NIAA or Article 1(F) of the Refugee Convention. There were compelling circumstances which would tip the balance in his favour in any event, so that the Respondent’s refusal to make a decision on his asylum claim was irrational and contrary to the terms of the policies.

26. Mr Biggs set out the background to the case, the pleaded case, the law, the policies, the evidence and then made submissions arising from those. He accepted that there was a short period of administrative delay from August 2024 until January 2025, when the decision was made to put the case on hold pending the outcome of the criminal investigation and prosecution, but that could not be said to be unlawful. The delay since then was in accordance with the policies. Mr Biggs relied upon the cases of R (X & Ors) v. SSHD [2021] EWCA Civ 1480 and R (Zhou & Ors) v. SSHD [2024] EWCA Civ 81, which made clear that the Secretary of State had a wide implied discretionary power under the 1971 Act to delay a decision on whether to grant a person leave to remain. He submitted that the Respondent had a public law duty to follow policy and that the application of a policy was a matter for her, subject to Wednesbury review. There was unassailable evidence before the Respondent, as stated in an email of 9 April 2025 (page 126 of the bundle) referring to the Applicant having received in excess of £200,000 of benefits over three years, that the Applicant may have committed a serious fraud. Taking benefits dishonestly could be described as a serious fraud. It was on that basis that Philip Mount, in his statement, considered that it was at all times understood that the Applicant’s offence might involve a substantial custodial sentence. Mr Biggs submitted that it was therefore open to the Respondent to conclude that the Applicant’s possible sentence was sufficient to put his asylum claim on hold.

27. With regard to the Pre-Sentence Report, Mr Biggs submitted that that had only been received the previous Friday by the Secretary of State’s legal team and it therefore had no bearing on these proceedings. In any event the report was not binding on the Judge, and it was also relevant to consider that sentencing was to take place imminently. As for the evidence relied upon by the Applicant as demonstrating “very compelling individual circumstances which tip the balance in favour of deciding an asylum claim on the evidence available”, in terms of the PPACG at page 6, Mr Biggs submitted that the material the Applicant put forward prior to issuing these proceedings did not fall within the scope of “very compelling individual circumstances” so there was no need to look at it, but in any event, nothing material arose from that as the evidence had since been considered, as Philip Mount made clear at [22] of his statement, and it was properly found that it did not justify a decision being made on the Applicant’s protection claim in advance of the prosecution.

28. In reply, Ms Dirie submitted that it was wrong to give such short shrift to the evidence as Mr Mount did at [22], as there was strong evidence of the impact of the delay on the Applicant and his family.

Ground Two

29. Ms Dirie submitted that there were two elements to the second ground, namely unlawful delay and detrimental effect. There had been a two year delay from the Applicant making his claim until his interview, a year for the decision to be made initially, and a year to the withdrawal of the decision. The case had therefore been beset by delays. When looking at the compelling circumstances of the family and the belated administration it was clear that there had been a detrimental effect on the Applicant and his family. The Respondent ought to have contemplated other forms of leave, although the point was that the Applicant wanted refugee status. Ms Dirie referred to the medical evidence setting out the Applicant’s various conditions, as well as his mental health issues, and to the Applicant’s witness statement setting out the impact of the delay upon his wife and daughters. She submitted that none of that had been considered by the Respondent.

30. Mr Biggs submitted that the test when considering delay was whether it was “manifestly unreasonable”, and he referred to the case of R (FH & Ors) v. SSHD [2007] EWHC 1571 in that regard. He submitted that that was an elevated threshold which the Applicant had not shown had been met. He disagreed with the Applicant’s submission that the wide implied power under the 1971 Act to delay a decision on whether to grant a person leave to remain did not apply equally to asylum cases. It was wrong to claim, as the Applicant had, that there was a five year delay, when the two years from the claim to the interview coincided with the pandemic, and when a substantive decision was taken in the Respondent’s Review in August 2024. From December 2024 the delay was due to a reasonable decision based on policy, to await the outcome of the prosecution. The length of time awaiting a decision was accordingly not unreasonable.

31. As for the issue raised by myself in regard to the Applicant’s human rights claim, Mr Biggs made four points. Firstly, he submitted that that matter had not been specifically pleaded in the amended grounds which focussed on the protection claim and did not suggestion any separation of the protection and human rights claims. Secondly, the Applicant had not made a separate human rights claim and in any event the usual structured approach was for the protection claim to be considered first, followed by humanitarian protection, than leave outside the immigration rules on human rights grounds, and then Article 8. Thirdly, a grant of refugee status leave carried specific entitlements which did not apply to other forms of leave and that it did not follow that the Applicant’s wife and children were entitled to Article 3 leave on risk grounds. Fourthly, a grant of limited leave outside the immigration rules could have consequences for the Applicant which he did not want. It was therefore not unreasonable for the Secretary of State not to consider granting other forms of leave separately, particularly where the Applicant had not requested the asylum and human rights claims to be considered separately.

32. Essentially the same points were made in Mr Biggs’ written submissions provided subsequent to the hearing, which also emphasised that granting limited leave to remain on an interim basis before determining the Applicant’s protection claim would be a wholly exceptional course for the Respondent to take and that it was reasonable for the Respondent not to consider taking that exceptional course when the Applicant had never invited her to do so. In response, the Applicant’s solicitors submitted that the Respondent had considered the Applicant’s human rights claim in her decision of 1 September 2023 and then withdrew the entire decision at the time she committed to implement a grant of asylum, and that it was therefore always open to the Home Office to grant lesser leave in response to an application, including when someone had been “excluded”. It was submitted that, in any event, a grant of lesser leave would not have resolved the central issue for the Applicant, namely the denial of secure refugee status to him and his family. Mr Biggs reiterated the points previously made in response, in particular his submission that there was no public law error in the Respondent not considering whether to grant “lesser leave” to the Applicant in the circumstances, because there was no obligation on the Secretary of State to consider such a grant.

Legal Framework

33. Paragraph 339AC of the Immigration Rules provides:

“Danger to the United Kingdom

339AC. This paragraph applies where the Secretary of State is satisfied that: Article 33(2) of the Refugee Convention applies in that:
(i) there are reasonable grounds for regarding the person as a danger to the security of the United Kingdom; or
(ii) having been convicted by a final judgment of a particularly serious crime, the person constitutes a danger to the community of the United Kingdom (see section 72 of the Nationality Immigration and Asylum Act 2002).”

34. Article 33 of the 1951 Convention provides:

“PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”

35. Section 72 of the Nationality, Immigration and Asylum Act 2002 provides:

“72 Serious criminal
(1) This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from prohibition of expulsion or return). (2) A person is convicted by a final judgment of a particularly serious crime if he is—

(a) convicted in the United Kingdom of an offence, and
(b) sentenced to a period of imprisonment of at least 12 months.”

36. The Guidance, “Pending prosecutions in asylum claims”, Version 2.0, dated 19 January 2023 (“the PPACG”), states:

(Page 5)

“Where the claim does not fall for refusal as it stands, and the potential sentence, if
the claimant is found guilty, would meet the threshold for exclusion under Article 1F of the Refugee Convention, the criteria in Article 33(2), revocation of refugee status
under paragraph 339AA-B, or suitability criteria under the family/private life rules, the claim would usually be put on hold pending the final resolution of any criminal
proceedings.

Such scenarios might include where:

◦ the prosecution concerns an offence which could result in a sentence of 12-months or more for convictions on or after 28 June 2022, or 24-months or more for convictions before 28 June 2022, the prosecution concerns crimes that could bring the claimant in-scope of Article 1(F) of the Refugee Convention, for example war crimes, crimes against peace or crimes against humanity…”

37. The Guidance, “Pending prosecutions”, Version 5.0, dated 18 November 2024 (“the PPG”), states:

(Page 3)

“A ‘pending prosecution’ is defined for the purposes of this guidance as where a person:

• has been arrested or charged in respect of one or more criminal offences and one or more of these offences has not been disposed of either by the police or the courts
• is the subject of a live investigation by the police for a suspected criminal offence… “

(Page 11)

“There is no specific time frame within which a decision on a person’s asylum claim
must be made in circumstances where there is a criminal prosecution pending
against them, either in the UK or abroad. However, in line with paragraph 333A of
the Immigration Rules, where a decision cannot be made on an asylum claim within
6 months of the date it was recorded, then you must write to the claimant and inform
them of the delay.”

“There are a number of facts that will determine how long a claim from a person with
a pending prosecution recorded against them must be held undecided, including:

• the stage the criminal proceedings have reached
• when the relevant criminal justice system is in a position to resolve it
• the severity of the crime in question, including the possible resulting sentences "

“It is preferable to make an asylum decision once all relevant facts are available.
Therefore, claims from those with a prosecution pending are normally held for as
long as required. To avoid claims unnecessarily being placed on hold, where the
crime is not so severe as to warrant possible exclusion under Article 1(F) of the
Refugee Convention or the potential sentence does not meet the definition of a
‘particularly serious crime’ in section 72 of the Nationality, Immigration and Asylum Act 2002 and would likely have no impact on the outcome of the asylum claim, a
decision can be taken to grant an outstanding claim ahead of the final resolution of
any criminal proceedings.“

(Page 12)

“Where the claimant has a pending prosecution which could lead to a conviction
which would meet:

• the threshold for exclusion under Article 1F of the Refugee Convention
• the criteria in Article 33(2)
• the threshold for revocation of refugee status under paragraph 339AA-B
• the suitability criteria under the family/private life rules

The claim must normally be paused until the outcome of the prosecution is known.

Such scenarios might include where the prosecution concerns:
• a particularly serious crime
• the claimant has had a series of minor offences recorded

Occasionally, there may be very compelling individual circumstances which tip the
balance in favour of deciding an asylum claim on the evidence available without
awaiting the criminal court’s verdict even where the crime is so severe as to possibly
warrant exclusion under Article 1(F) of the Refugee Convention or the sentence
would meet the threshold in section 72 of the Nationality, Immigration and Asylum
Act 2002. However, this should be rare ….”

Analysis

Ground One

38. There was nothing, in my view, which was irrational or unreasonable in the Respondent’s decision to defer the decision on the Applicant’s protection claim, and I reject the assertion that the relevant policies, the PPG and the PPACG, did not justify the hold on the decision. On the contrary it seems to me that the decision was fully and properly in line with the terms of the policies and that, having applied the guidance in those policies, and there being no challenge to the policies themselves, the Respondent was fully and properly entitled to proceed as she did. My reasons for so concluding are as follows.

39. The Applicant argues that the pending prosecution could not have a material impact upon the decision in his protection claim and bears no relevance to his claim, so that the refusal to make a decision on the basis of that pending prosecution is irrational. However it is clear from the policies that the pending prosecution could materially impact upon his claim in so far as he could potentially be excluded from the protection of the Refugee Convention. Whilst I agree that the nature of the Applicant’s offending would be unlikely to bring him within the scope of Article 1(F) of the Refugee Convention, the same cannot be said of Article 33(2) of the Convention and section 72 of the NIAA, the latter of which, in section 72(2) includes a “particularly serious crime” as one for which a sentence of imprisonment of at least 12 months is imposed.

40. The Applicant’s case is that he does not fall within those provisions within the policies for two reasons: firstly, because the nature of his crime was such that he was unlikely to receive a sentence of 12 months’ imprisonment; and secondly, because there were very compelling individual circumstances which would exclude him from that provision.

41. With regard to the first reason, it is relevant to note that in the amended grounds of claim reliance was placed, at [47], upon the fact that at that point there was no suggestion that the charge was not suitable for summary trial and sentence. However as the Respondent observed at [40] of her skeleton argument, the possibility of a 12 month or longer sentence could not now be disputed given that the Applicant’s case has since been sent to the Crown Court. In addition, the Applicant has pleaded guilty and the information available indicated that he had dishonestly obtained in excess of £200,000 in benefits.

42. The Applicant maintains that, irrespective of his case being sent to the Crown Court, his offending has always been unlikely to lead to a term of imprisonment of 12 months in any event. He relies upon the Basis of Plea and the Pre-Sentencing Report in making such an assertion, claiming that as far as his offending is concerned, he had simply failed to correctly notify the proper authorities when his circumstances changed and had made a mistake, and that he had never hidden the fact that he was working, so that his offence was no more than a dishonest representation and was not a ‘serious fraud’ as asserted by the Respondent. However the exact terms of the offence were noted at [10] of the statement of Mr Mount who, having had regard to the sentencing guidelines which, although not precisely on point for the Applicant’s offence, were the most relevant and analogous, found at [11] and [12] that the offence could nevertheless result in a sentence of more than 12 months and gave reasons for so concluding. As Mr Biggs submitted, no challenge has been made to that statement or to the expertise of Mr Mount in stating as he did. Further, whilst the Pre-Sentencing Report which has now been made available recommends the imposition of a community order for 12 months and a rehabilitation activity requirement, with the possibility of a financial penalty, that was not information that had been available to the Respondent when the decision was made to put the Applicant’s asylum claim on hold. As Mr Mount observed at [13] of his statement, the information about the nature and circumstances of the offence was limited at that time. In addition, as Mr Biggs submitted, the Sentencing Judge was not bound by that report or recommendation.

43. In the light of Mr Mount’s evidence, the relevant policies clearly applied to the extent that the guidance for decision-makers was that it was appropriate, in such circumstances, to delay a decision on the applicant’s asylum claim. I refer in particular to page 5 of the PPACG which states that “Where the claim does not fall for refusal as it stands, and the potential sentence, if the claimant is found guilty, would meet the threshold for exclusion under Article 1F of the Refugee Convention, the criteria in Article 33(2), revocation of refugee status under paragraph 339AA-B, or suitability criteria under the family/private life rules, the claim would usually be put on hold pending the final resolution of any criminal proceedings.”

44. The Applicant asserts that he falls, in any event, within the exception to that principle which is set out in the PPG as cited above, and which also appears in the PPACG, namely that “Occasionally, there may be very compelling individual circumstances which tip the balance in favour of deciding an asylum claim on the evidence available without awaiting the criminal court’s verdict even where the sentence would meet the relevant thresholds”. He asserts that there are very compelling individual circumstances in his case, namely the impact upon him and his family of the delay in a decision being made on his protection claim, which had led to a deterioration in his mental and physical health, and that of his wife and daughters.

45. In so far as the grounds assert that the Respondent failed to evaluate, pursuant to the terms of the policies, whether or not there were such ‘very compelling individual circumstances’, I note that the evidence submitted prior to the Applicant lodging his claim was expressly considered by the Respondent in the PAP response of 6 May 2025. Even it was the case that, prior to that, consideration had not been given to whether the claim should be decided without awaiting the criminal court’s verdict, it is clear from Mr Mount’s statement at [22] to [24] that the full extent of the evidence has since been considered by himself in the context of the policy guidance, including a full consideration of the best interests of the children.

46. In any event, as Mr Biggs submitted, the evidence in that regard was, and is, minimal. Prior to the issue of these proceedings the evidence appears to have consisted simply of the information provided in the pre-action protocol letter of 22 April 2025, referring to the Applicant’s various health conditions with some supporting medical reports/letters, as well information about the problems encountered by one of his daughters in her academic progression, and his wife’s depression. The supporting medical evidence appears at pages 156 to 168 of the hearing bundle and refers to the Applicant being prescribed sertraline for stress, anxiety and depression, and to the diagnosis and treatment for fibromyalgia, hypertension, ulcerative colitis and osteoarthritis. The letter at page 164 of the bundle, dated 21 November 2024, suggests that some of those problems may have existed or commenced prior to coming to the UK. There is nothing in that evidence to suggest that it was the delay in the decision-making process by the Respondent which had led to those conditions. No evidence was submitted relating to the Applicant’s wife and daughter and it was only in the witness statement of 4 June 2025 submitted with the judicial review claim that mention was made by the Applicant of suicidal ideations on the part of himself and his daughters. There was therefore clearly no independent evidence before the Respondent to support a claim that the delay was having a direct, adverse impact on the health of the Applicant and his family, and certainly not to the extent claimed by the Applicant.

47. In the circumstances it was entirely open to the decision-maker, as properly confirmed by Mr Mount, to conclude that the material put forward by the Applicant did not fall within the scope of ‘very compelling individual circumstances’. That is particularly so given the qualification in the policy guidance that deciding a claim prior to the completion of the criminal proceedings on the basis of ‘very compelling individual circumstances’ would only occur in the “scarcest of circumstances”. I agree with Mr Biggs that the circumstances in this case cannot, on any view, be considered to be the scarcest or rarest, and that it was accordingly reasonably and rationally open to the Respondent to put the Applicant’s claim on hold to await the outcome of the criminal proceedings.

48. For all these reasons I do not consider the first ground to be made out.

Ground Two

49. The first element to the second ground is the question of unlawful delay. It is asserted by the Applicant that the delay, of just under five years, is manifestly unreasonable and unlawful. Both parties rely upon the decision in FH & Ors, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 1571 in that regard.

50. In that case, the Court held at [11] that “the question is whether the delay was unlawful. It can only be regarded as unlawful if it fails the Wednesbury test and is shown to result from actions or inactions which can be regarded as irrational”, and at [30] that “It follows …that claims such as these based on delay are unlikely, save in very exceptional circumstances, to succeed and are likely to be regarded as unarguable. It is only if the delay is so excessive as to be regarded as manifestly unreasonable and to fall outside any proper application of the policy or if the claimant is suffering some particular detriment which the Home Office has failed to alleviate that a claim might be entertained by the court.”

51. I do not agree with the Applicant that the delay in his case can be regarded as “manifestly unreasonable”. As Mr Biggs submitted, it is relevant to have regard to the fact that the two year period between the Applicant’s claim for asylum and his substantive interview included the Covid 19 pandemic. A meaningful decision was made in his favour on 29 August 2024 when the Respondent decided to withdraw the earlier decision of 1 September 2023 with a view to granting refugee status. That decision made clear that the grant of refugee status was subject to “any necessary checks” and it is apparent from Mr Mount’s statement that the checks were completed within a relatively short period of time, on 20 December 2024, resulting in the discovery of the Applicant’s previously unknown arrest on 3 December 2024 for offences contrary to section 106 of the Immigration and Asylum Act 1999. It was at that point, or shortly thereafter, that the case was put on hold, a decision which, for the reasons already given, was a reasonable and rational one in accordance with the Home Office policy guidance and also supported by the decisions, albeit not involving protection claims, in R (X & Ors) v. SSHD [2021] EWCA Civ 1480 and R (Zhou & Ors) v. SSHD [2024] EWCA Civ 81.

52. In so far as the Applicant relies, as the second element in his ground of challenge, upon the detriment to himself and his family as a result of the delay, a factor of relevance set out in FH, I refer to my observations above as to the limitations of the medical evidence and the lack of substance in the claims made by the Applicant in that regard. On the basis of those observations I do not consider that any material detriment has been demonstrated by the Applicant of a sufficiently compelling nature to warrant an earlier decision on his asylum claim. In the circumstances, there is nothing within the history and chronology of the decision-making process which remotely suggests that there was, or has been, an unreasonable delay on the part of the Respondent. The “manifestly unreasonable” threshold in FH has quite clearly not been met.

53. I turn finally to the point raised by myself, namely the Respondent’s failure to make a separate decision on the human rights element of the Applicant’s claim, particularly the Article 3 risk, a matter which does not appear to expressly form part of the two policies. I am persuaded by the arguments made by Mr Biggs, in that, whilst the Applicant’s second ground of appeal refers in its title to the delay in the decision on his human rights claim as well as his protection claim, the substance of the grounds is essentially focussed on the asylum grounds. There is nothing in the grounds which suggests that there ought to have been any separation between the decision-making in the Applicant’s protection and human rights claims. Ms Dirie certainly did not suggest that there was. It was only at my instigation that the point was even considered. Furthermore, the Applicant did not make a separate human rights claim, but his claim was one of protection on asylum grounds, and at no point did he ever invite the Respondent to consider granting him leave on Article 3 grounds before, or in lieu of, determining his asylum claim. As Ms Dirie accepted, it may also be the case that the Applicant would not have been content with a lesser form of leave granted on human rights grounds. The Applicant’s subsequent written submissions assert that it was open to the Respondent to grant lesser leave in response to an application, but essentially do not take matters further. In the circumstances I do not consider that anything material arises out of the matter. That is particularly considering the findings already made on the question of detriment in the context of the asylum claim. The observations and conclusions I have already reached on the basis of the available evidence apply equally to the delay in the context of human rights as well as asylum. I do not consider that the second ground can be made out on any basis.

54. For all of these reasons I consider that the Applicant’s grounds have not been made out and this claim is accordingly refused.

Decision

55. The applicant’s application for judicial review is refused.


Costs

56. Both parties made written submissions as to costs. The Applicant submits that the appropriate order in this case is that each party bears its own costs and that the Tribunal should exercise its broad discretion to make an order to that effect. The reasons provided for such an order being made are that: this was a public law case, it was not a weak case, permission had been granted and the case was therefore arguable, the Applicant had acted reasonably throughout the proceedings, and the Applicant was an asylum seeker of limited means. The Applicant requests in the alternative that the Tribunal limits recovery of costs to a proportionate and modest sum, summarily assess costs at the lowest reasonable figure and allow reasonable time for payment.

57. The usual course is that costs follow the event. The Applicant’s claim has been refused. It is relevant to note that the grant of permission was made partly on the basis that charges had not yet been brought against the Applicant, yet the Applicant chose to pursue the claim once charges were brought and also after his case was transferred to the Crown Court. He would have been fully aware throughout of the requirement to meet the Respondent’s costs should he be unsuccessful in these proceedings. He had the benefit of legal advice. In the circumstances I see no reason why he should not bear the Respondent’s costs of the proceedings and no reason why there should be any reduction in the costs to be paid or other adjustments made.

58. Accordingly, the appropriate order, as requested by the Respondent in her costs submissions, is for the Applicant to pay the Respondent’s reasonable costs, to be assessed on the standard basis if not agreed.