AS AGAINST ADVOCATE GENERAL FOR SCOTLAND [2020] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> AS AGAINST ADVOCATE GENERAL FOR SCOTLAND [2020] ScotCS CSOH_94 (19 November 2020) URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_94.html Cite as: [2020] CSOH 94, [2020] ScotCS CSOH_94, 2020 GWD 40-513, 2021 SLT 1492

The delay in the determination of the petitioner’s asylum claim and the Orders sought

[1] The petitioner in this judicial review, a citizen of Egypt, made a claim for asylum in

September 2018. As at the date of the substantive hearing, of 4 November 2020, the

petitioner’s asylum claim had not been determined. Mr Caskie, who appeared for the

petitioner, readily accepted that given the impact of the Covid pandemic, he could not and

did not found on the period from March to September 2020. However, even allowing for

that hiatus, the petitioner’s position is that the point had been reached where the delay was

unlawful. In those circumstances, the petitioner sought an order for specific implement at

common law, ordaining the Secretary of State for the Home Department (“the Secretary of

State” or “SSHD”, as the context requires) to issue a decision in respect of the petitioner’s

asylum claim, and that within 7 days or such other date as the court considered appropriate.

[2] In his note of argument, the petitioner refers to certain factual matters. I note these,

as their nature is relevant to the length of consideration of the petitioner’s asylum claim. I

stress that I make no finding as to the veracity or otherwise of these factors. The petitioner

acknowledges that a former flatmate in Egypt was allegedly involved in an act of terrorism

in Egypt, and also that following a trial in Egypt, the petitioner, was sentenced in absence to

a 15-year period of imprisonment. The petitioner’s position is to deny that he was involved

in terrorist activity and to assert that the trial in his absence was unfair.

[3] At the outset of the hearing, Mr Caskie indicated that he no longer insisted on any

challenge based on any contact or enquiries that the petitioner had understood that the

Home Office might have made with the Egyptian authorities (which would have been

unlawful), and the relative averments were to be treated as deleted. Counsel for the

respondent, Mr Pugh, makes the point that, as a consequence, there is little of substance left

in the petition. In his submission, the petitioner’s case became one of “pure” delay, a

[4] Parties produced notes of argument and separate statements of issues, bundles of

authorities and productions. I have had regard to all of these materials, to the extent they

related to the remaining issues and do not propose here to repeat them.

[5] Parties referred to passages in an undated letter from the Home Office. It was

understood that the letter, addressed to a staff member within the offices of the petitioner’s

Member for Parliament, had been received on 20 January 2020 (“the holding letter”). The

body of the holding letter, omitting salutation and an introductory paragraph, was as

“I am sorry for the delay in the decision being made on [the petitioner’s] asylum

claim. [The petitioner] claimed asylum on 10 August 2018. Until October 2018, our

aim was to decide 98% of straight forward asylum claims within six months of the

date of claim. However, many asylum claims are not straight-forward, which meant

it was not always possible to make an initial decision within six months of the date of

As part of the application process, we routinely conduct enquiries with other

government departments and external agencies. The extent and length of time taken

to complete these varies according to the particular circumstance of each case.

Whilst we appreciate that the delays are frustrating for the asylum claimers, our

policy and procedures must remain intact. We are unable to conclude [the

petitioner’s] case until the security checks are completed, therefore, I am unable to

Although we do have criteria against which we will expedite asylum cases, this is

only considered in the most serious circumstances. Examples of which are serious

safeguarding issues, or cases of serious family illness or bereavement abroad, and

only if such requests are supported by documentary evidence. If t [the petitioner] feels

that he falls under this remit, we would be more than happy to forward any supporting

documentation he may wish to submit onto the relevant team for consideration.

We fully appreciate that those in the asylum process may be under severe emotional

pressure, which is why we provide relevant information to asylum claimants

throughout the process, including signposting to any support they may require. All

asylum claimants are provided with a comprehensive leaflet that sets out what to

expect at the asylum interview, the possible outcomes of the asylum claim, how to

obtain legal advice to support their claim, details of support organisations that might

be relevant, rights and responsibilities of asylum seekers, and information about

I understand that [the petitioner] will be disappointed with the time it is taking to

conclude his case, however, please reassure him that his case is under active

consideration and as soon as we are able, a decision will be made and we will inform

him or his legal representatives of the decision in writing. Furthermore, [the

petitioner’s] further representations were added to his case file and will form part of

After the reference to the date of the petitioner’s asylum claim (in the first paragraph), the

holding letter is in entirely generic terms except for the two passages underlined: (i) the

statement (at the end of the second paragraph) that no determination of the petitioner’s

claim can be made “until security checks are completed”, and (ii) the assurance that “his

case is under active consideration”. In submissions the reference to “active considerations”

[6] In advancing the petitioner’s case of unlawful delay, Mr Caskie made the following

1) He noted the observation of Sir John Donaldson MR in R v Lancashire CC,

ex parte Huddleston [1986] 2 All ER 941 (“Huddleston”) at p 954, that when an

applicant is granted leave for judicial review, then it became the duty of the

respondent public authority “to make full and fair disclosure”. He also

referred to the observation, a little further on in the same page, that the

process required to be conducted “with all of the cards face upwards on the

table” (at p 945g), a passage quoted with approval by Lord Walker of

Gestingthorpe in his dissent from the Advice of the majority of the Privy

Council in Belize Alliance of Conservation Non-Governmental Organizations v The

Department of the Environment [2004] UKPC 6, [2004] Env LR 761 (“Belize”) (at

paragraph 85). In Belize Lord Walker observed (at paragraph 86) that

proceedings for judicial review “should not be conducted in the same manner

as hard-fought commercial litigation”. Rather, a “respondent authority owes

a duty to the court to cooperate and to make candid disclosure of the relevant

facts…and the reasoning behind the decision challenged”. Mr Caskie

submitted that permission had been granted in this case, which had the effect

of triggering the duty of candour on the part of the Secretary of State.

“deliberately delayed in making a decision to allow her to carry out

further investigations of the merits of the petitioner’s claim without

providing this Court with any comprehensible explanation as to why

those enquiries have taken all but two years” (per paragraph 14 of the

2) Mr Caskie also noted the observation of Laws LJ in R Quark Fishing Limited v

Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409

(“Quark”) (at paragraph 50) to the effect that, while there is no general duty of

“very high duty on a public authority respondent… to assist the court

with full and accurate explanations of all of the facts relevant to the

issue the court must decide. The real question here is whether in the

evidence put forward … the Secretary of State has given a true and

comprehensive account of the way the relevant decisions in the case

Absent that, “it may be appropriate to draw inferences” against the Secretary

3) He accepted that, having regard to the fact that the background

circumstances related to an alleged involvement in terrorism, the petitioner’s

case was a complex case or that it may involve complex investigations.

However, in this case, the Secretary of State had either failed to provide any

reasons for not issuing a decision on the petitioner’s asylum application or

that any reasons provided (ie for not producing a decision to date) were

inadequate. It was not known, for example, whether the Secretary of State

had or was undertaking security checks in respect of the petitioner;

4) Under reference to Article 6(2) of Council Directive 20005/85/EC (“the

Asylum Procedures Directive”), which provided that a Member state shall

ensure that each adult has a right to make an application for asylum,

Mr Caskie submitted that that provision gave the petitioner an established

status or right, and to which the observations of Garnham J in O&H v SSHD

[2019] EWHC 148 (Admin) at paragraph 89 (quoted below, at para [8]) and

those of Elias J in R v SSHD ex p Mersin {2000] INLR 511 (quoted with

approval in O&H) – two cases relied on by the Secretary of State - applied. In

the present context, as in those cases, the delay was such as to be unlawful;

5) He relied on the observation of Collins J in R (FH) v SSHD [2007] EWHC 1571

(Admin) (“FH”), at paragraph 30, which was to the effect that delay could be

unlawful if “manifestly unreasonable” or if the claimant was suffering “some

particular detriment”. He submitted that the petitioner has suffered hardship

in the sense that (in common with other asylum seekers), the petitioner was

precluded from working and that the benefits and other supports afforded to

him were limited. This was illustrated by reference to medical bills that the

petitioner had incurred (but has not yet paid) not long after he made his

asylum claim, but he was “at risk” of incurring further liability for medical

bills, if he were to fall ill again before his application was determined. I did

not understand Mr Caskie to point to any specific or additional hardship,

other than the constrained circumstances in which asylum seekers find

[7] Mr Pugh, who appeared on behalf of the respondent accepted as a generality, that

decisions on applications for asylum must be issued by the Secretary of State within a

reasonable period. The short reply was that the petitioner’s claim has not been determined

and that investigation remains ongoing. This was reflected in the respondent’s two

1) Where a case does not concern an established status or right, delay will only

be unlawful if it is irrational. Otherwise, the Court will not generally involve

itself in questions concerning the running of a government department. In

this case, he submitted, the petitioner did not have a settled status.

2) In any event, the respondent argues that delay can only be considered within

the full context of the case and that, here, the delay is explained and is not

unreasonable. Here, the context is that the SSHD has delayed making a

decision to allow her to carry out further investigations of the merits of the

[8] In support of the first line of defence, Mr Pugh submitted that the petitioner does not

have an established right to remain in the country. His right to do so has not yet been

determined. He referred to the recent case of O&H v SSHD [2019] EWHC 148 (Admin)

(“O&H”), in which Garnham J was asked to consider alleged unlawful delay in the context

of claims made regarding protection for the victims of human trafficking. After reviewing

the authorities on unlawful delay, Garnham J summarised the applicable principles, as

“89. From those cases I draw the following principles which seem to me relevant

Delay may be unlawful when the right in question arises as a matter

of established status and the delay causes hardship (Phansopkar).

ii) An authority acts unlawfully if it fails to have regard to the fact that

what is in issue is an established right rather than the claim to a right

iii) Delay is also unlawful if it is shown to result from actions or inactions

which can be regarded as irrational. However, a failure merely to

iv) The court will not generally involve itself in questions concerning the

relevant to a charge of systematically unlawful delay, but the Courts

will be wary of deciding questions that turn on the allocation of scarce

Mr Pugh submitted that those principles were stated against a background of an acceptance

that the SSHD has a duty to determine cases within a reasonable period (see paragraph 71 of

O&H). There was a rejection, however, of any notion that an alleged period of delay was

“self-evidently” unreasonable (ibid at paragraph 73). The propositions outlined at

paragraph 89 of O&H were a correct statement of the law in respect of alleged unlawful

delay in a case such as the present. Of particular importance were principles (iii) and (iv).

Accordingly, to succeed in an application such as the present, the petitioner has to show that

in not yet having reached a decision on the merits of his asylum claim the Secretary of State

[9] In support of the second line of defence, Mr Pugh took the Court through the terms

of the holding letter and Answer 7. As the substance of the holding letter was referred to in

the Answers (and is quoted above), I need only note the averments of additional matters

“The petitioner’s case is, in fact, complex. It requires a full consideration of his given

account. It requires consideration to be given to the nature of offences disclosed in

the account. Since March 2020, as a result of the COVID 19 restrictions, the Secretary

of State has been unable to progress investigations. She will be unable to do so until

From this he submitted that there had been an explanation for the delay, by reason of the

fact that the petitioner’s case was complex, security checks had not been completed and

investigation was required to consider the nature of the offences disclosed in the petitioner’s

account. Mr Pugh was at pains to stress that he was not privy to what those investigations

might be. The foregoing sufficed, however, to explain the time taken. In the light of those

circumstances, the delay was not irrational and the petitioner’s case was bound to fail.

[10] The essential issue in this case is whether the delay on the part of the Secretary of

State in determining the petitioner’s application for asylum is unlawful. As is clear from the

helpful discussion by Garnham J in O&H, there are differing tests for determining whether

delay in making a decision is unlawful. In the cases placed before the Court, the test turned

on whether one had an established right or settled status; that is the difference between

principles (i) and (ii) of O&H and principle (iii). As it was put by Elias J in Mersin (at p 522)

“…if someone has established the right to some benefit of significance, as the right

to refugee status and indefinite leave surely is, and all that is required is the formal

grant of that benefit…., then it is incumbent upon the authority concerned to confer

From the cases cited, examples of those with an “established right” were foreign-born

spouses with a right of abode in the UK derived from their husbands (who were registered

citizens of the UK) (in Phansopkar), or an individual who had successfully appealed the

Secretary of State’s refusal of asylum and thereby attained the status of refugee (Mersin). By

contrast, individuals in respect of whom the Secretary of State had not yet made a

determination that they had been trafficked (the applicants in O&H) or those whose second

asylum claim was pending (having successfully overturned the Secretary of State’s refusal of

their first application (as in FH)), did not have an established right. Mr Pugh notes that the

court in O&H found that the case of FH was closest in its application. Mr Caskie seeks to

distinguish Mersin on the basis that the Asylum Procedures Directive did not then exist.

[11] In my view, the petitioner does not have a settled or established status, such as to

bring him within the scope of the principles in subparagraphs 89(i) and (ii) of O&H. He has

the status of an asylum seeker. While that it is a recognised status, which entitles him to

certain protections and rights, it relates to one who is seeking asylum but whose application

for asylum is pending. It is an inherently provisional or interim status. The petitioner

sought to rely on Article 6(2) of the Procedures Directive, and to distinguish Mersin as

having been decided before that Directive was in force. In my view, the petitioner’s reliance

on Article 6(2) of the Directive is misconceived. That is no more than a procedural right. All

that provision does is entitle an adult individual to exercise the right to claim asylum: a

right the petitioner has exercised. Having done so, that right is exhausted. It does not itself

create or confer any other substantive right or permanent status.

[12] The fundamental difficulty for the petitioner’s argument is that, at best, the status of

asylum seeker is only ever an interim one pending determination of one’s application. The

outcome of the application for asylum will either (i) to be recognised as a refugee (if the

claim is accepted, and which is a settled status in the sense of a permanent one) or (ii) to

have one’s asylum application refused (and as a now- failed asylum seeker, to lose the

interim benefits of being an asylum seeker pending determination of the application).

[13] Accordingly, the test that falls to be applied to determine if the delay in determining

the petitioner’s application is unlawful is irrationality. That is not something that can be

determined in the abstract. No materials, eg of a comparative nature in respect of the

determination of other or similar applications, were placed before the Court to make any

real assessment of whether the time that had passed was “irrational”. In my view, there is

considerable force in Collin J’s observation at paragraph 30 of FH, that claims such as these

(ie not involving an established status or entitlement to a significant benefit of a permanent

character), are unlikely to succeed, save in exceptional circumstances and that 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

[14] Mr Caskie sought to bring the petitioner’s case within the ambit of that last

observation, but there was nothing presented to the Court to indicate or establish “particular

detriment” to the petitioner arising by reason of the passage of time or the impact of the

constrained circumstances in which asylum seekers find themselves. That is borne out by

the fact that, while the holding letter recognises that particular cases might require to be

expedited (as referred to in the passage underlined in the holding letter, at para [5], above),

there was nothing placed before the Court to suggest that the petitioner presented himself as

in need of an expedited determination arising from any particular detriment.

The petitioner’s criticism of the Secretary of State’s failure to give an adequate explanation

[15] While the petitioner’s case had been pled as a “no decision” case, hence the remedy

of specific implement, at times the petitioner’s argument appeared to be a complaint that the

Secretary of State had failed to explain her failure to decide, and that she was under a duty

in the interim to provide an explanation for what was being done. Nothing in the cases cited

to me would support the imposition of such a duty. I accept as well-founded Mr Pugh’s

submission that the cases cited by the petitioner regarding a duty of candour were readily

distinguishable, as all concerning cases where a decision had been made. They were not “no

decision” cases. They offer no support for the imposition of a duty on a decision-taker to

keep prospective applicants informed of the steps taken while their applications are

pending. That is, in my view, particularly the case where the investigations may require

consideration of potential terrorist activities and which may therefore involve liaising with

the security and anti-terrorism agencies. There is no warrant in the cases or in principle for

the imposition of a such a duty; indeed, to impose one would be inconsistent with

principle (iv) of paragraph 89 of O&H (set out above, at para [8]).

[16] The question of remedy was not the subject of detailed submissions. For

completeness, I should note that even if I had found in favour of the petitioner that the delay

in making a decision in respect of the petitioner’s application was unlawful, I was not

persuaded that a decree of specific implement was appropriate. Generally, a declarator

should suffice. To require more, at least without being heard on the question of the

appropriateness of that remedy, or the timescale for compliance, would be to trespass into

the sphere of “internal management”. In those circumstances, I would have put the matter

out for a hearing for further submissions on the remedy to be provided.

[17] It follows that the petitioner’s application fails and this application for judicial review

falls to be dismissed.

Scottish Court of Session Decisions