Important Court of Appeal judgment may help if you claimed asylum before 2001

On 20 June 2007, the Court of Appeal gave judgment in S (Afganistan) [2007] EWCA Civ 54.

In 2001, the Home Office was given a target of deciding 75% of asylum claims made after 1 January 2001 within 61 days. To meet this target, the Home Office put older asylum applications on hold. The Court decided that this was unlawful because the Home Office had not considered whether it was fair for them to delay decisions in the older claims in order to make speedy decisions on the new claims. Mr S had claimed asylum before 1 January 2001. His case was put on hold. The Court decided that, if it had not been, he would have received a decision before 15 November 2001. Up to that date, it was Home Office policy to grant indefinite leave to remain ('ILR') to Afghan asylum-seekers. His claim was finally decided after that and he was refused ILR. The Court decided that it was unlawful to refuse him the benefit of the old policy, because the reason for the delay in his case was the Home Office's unlawful policy of putting cases like his on hold.

You may benefit directly under the judgment if:

1. You claimed asylum before 2001; and

2. In 2001, the Home Office had a policy of granting Exceptional Leave to Remain (ELR) to people in your situation (see below); and

3. There was a long delay between your asylum claim and the first Home Office decision on your case; and

4. By the time your case was decided, the Home Office had withdrawn its policy.

You will not benefit if there were good reasons for the delay in deciding your case.

Examples of ELR policies include:

- Afghans: to grant ILR, changed 15 November 2001 to a policy to grant 4 years ELR, and withdrawn altogether on 18 April 2002;

- Angolans who were not formerly resident in Luanda: to grant 4 years ELR, policy still operational at April 2003

- Iraqis from outside the Kurdish Autonomous Area: to grant 4 years ELR, reduced to 6 months ELR on 20 February 2003 and withdrawn altogether

- Sierra Leoneans: to grant 4 years ELR, withdrawn on 6 September 2002.

Does the judgment help anyone else?
The Court's judgment is very important. The general rule it gives is not limited to people who claimed asylum before 2001. The general rule under the judgment is that:

- where the Home Office unlawfully delays making a decision on an immigration application; and
- that delay means that the applicant loses out on a favourable Home office policy because that policy is withdrawn

the applicant should be given the benefit of the withdrawn policy, unless there are strong reasons for not doing so.

Therefore, it may help anyone who falls into this situation, even if their claim was made after 2001. It may also help a person who got a speedy decision on their claim, but that decision was unlawful eg because it did not apply a policy which was in force at the time.

What to do if you think this judgement may apply to you
Seek legal advice to check if the judgement does apply to you and what further legal representations could be made regarding your refused asylum claim.

Since 1997, the Home Office has had a policy of not enforcing the return of failed asylum seekers to the countries listed below, for the periods specified.

House of Commons 18 Nov 2004 : Column 2050W

Prior to October 2002, Exceptional Leave to Remain (ELR) was granted to asylum applicants from particular countries on a country basis. The blanket use of ELR for certain countries ended in October 2002 and since then the issue of return has been considered solely in terms of the individual circumstances of each case.

Since the end of blanket ELR policies the only country for which there has been a general policy not to enforce the return of failed asylum seekers has been Zimbabwe. Enforced returns of failed asylum seekers to Zimbabwe were temporarily suspended between 15 January 2002 and 16 November 2004.

Country Period Specified

Afghanistan January 1995-October 2002

Angola August 1998-May 1999

Burundi(56) January 1997-October 2002

Congo November 1997-August 1998

(Congo-Brazzaville) July 1999-July 2000

Cote d'Ivoire October 2000-9 April 2001

DR Congo May 1997-May 1998 / August 1998-May 1999 / January 2001-February 2001

Iraq(57) January 1997-September 2000

Kosovo June 1999-April 2000

Liberia October 1990-October 2002

Libya April 2000-October 2002

Rwanda(56) January 1997-August 2002

Sierra Leone June 1999-September 2001

Somalia(57) January 1997-October 2002

Turkey July 1999-December 2000

Zimbabwe January 2002 -16 November 2004

(56) policy in place since 1994

(57) policy in place since late 1980s

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