From “As Short-Lived as Possible” to “Reasonable Time”: NICA sets the test for Article 8 delay in asylum decisions and re‑states the Salem filter

Introduction

This commentary analyses the Court of Appeal in Northern Ireland’s decision in JR 247 v Secretary of State for the Home Department [2025] NICA 46. The appeal arose from a judicial review in which an asylum seeker (JR247) challenged the Secretary of State’s omission to decide her asylum claim within a reasonable time. Although the claim was granted and a biometric residence permit issued while the proceedings were pending, the High Court (Colton J) proceeded to a substantive determination and dismissed the claim, finding no breach of Article 8 of the European Convention on Human Rights (ECHR). On appeal, the Court of Appeal (McCloskey LJ delivering the judgment of the court; with Horner LJ and McAlinden J) confronted two intertwined issues:

Whether the appeal had become academic, invoking the Salem principle on mootness in public law appeals.
The correct legal framework for assessing whether delay in asylum decision-making breaches Article 8 ECHR, in particular the meaning and role of “as short-lived as possible” (from BAC v Greece) versus “within a reasonable time.”

The court dismissed the appeal but took the opportunity to clarify the legal test that governs Article 8 “delay” claims in the asylum context and to reiterate the strict approach to academic appeals. Importantly, it adjusted the first-instance court’s formulation from “manifestly unreasonable” delay to “unreasonable” delay, while confirming that the reasonableness of the State’s conduct is central to the Article 8 assessment.

Summary of the Judgment

The Court of Appeal dismissed the appeal. It held that:

While the matter was a paradigm candidate for dismissal as academic under the Salem principle, the court proceeded only to address and clarify the correctness of the legal propositions at paragraph [100] of Colton J’s judgment.
Article 8 can be breached by delay in asylum decision-making, but the applicable test is whether the State examined the claim “within a reasonable time.” The Strasbourg phrase “as short-lived as possible” expresses the desired outcome, not the legal test.
The reasonableness of the State’s conduct during the period of delay is a relevant and necessary part of the Article 8 analysis. The court rejected the appellant’s contention that reasonableness is irrelevant.
The first-instance suggestion that delay must be “manifestly unreasonable” was adjusted: the correct standard is “unreasonable,” subject to fuller argument in a future case.
Where a positive decision has been made, that fact can weigh strongly against finding an Article 8 breach; each case remains highly fact-sensitive.
Delay alone may exceptionally breach Article 8 (as in BAC v Greece), but ordinarily there must be serious, evidence-based impacts beyond the inherent anxiety of awaiting a decision.
Paragraph 333A of the Immigration Rules—requiring decisions “as soon as possible” but “without prejudice to an adequate and complete examination”—does not, of itself, create a standard whose breach yields an Article 8 violation.
Counsel’s non-compliance with the court’s authorities-limitation practice was censured, with potential costs consequences reserved for the final order.

Detailed Analysis

1. Precedents Cited and How They Shaped the Decision

R v Secretary of State for the Home Department, ex p Salem [1999] 1 AC 450: The court revisited Salem to assess whether the appeal had become academic once the appellant’s asylum claim succeeded. It reaffirmed that appellate courts ordinarily decline to decide academic questions unless a discrete point of general public importance requires authoritative determination and is likely to arise again. The court found no evidence of “other cases” depending on this appeal and stressed fact-sensitivity in delay claims. Nonetheless, it proceeded to refine the legal test at [100] of the first-instance judgment.
EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159: The House of Lords recognised that delay can strengthen an Article 8 claim because personal and social ties deepen over time ([14]) and because prolonged inaction may change the proportionality calculus of removal ([15]). The Court of Appeal reconciled EB with the asylum context, emphasizing that asylum applicants are not liable to removal pending their claim. Thus, the “very precarious position” concept is not transposable wholesale to asylum delay cases. The key lesson retained from EB is that the Article 8 assessment can strengthen with time—depending on facts—but that does not automate a breach from mere delay.
BAC v Greece (2018) 67 EHRR 27: The Strasbourg court found a breach where an applicant lived for 12 years in Greece without a final asylum determination, underscoring positive obligations to examine asylum requests promptly so insecurity is “as short-lived as possible.” NICA clarified that this phrase states the objective to be achieved, not the legal test. The operative test is whether the application was examined “within a reasonable time.” BAC demonstrates that egregious delay can be a stand-alone Article 8 breach, but the threshold is fact-specific and high.
M.S.S. v Belgium and Greece (GC) (2011): Cited parenthetically in BAC, largely an Article 3 case; the Court of Appeal noted its limited relevance to the specific Article 8 “delay” test beyond contextual support for prompt processing as a general proposition.
Article 6(1) “reasonable time” line of cases (e.g., Eskelinen v Finland; Abdoell v Netherlands): Invoked by analogy to support the proposition that courts assess the adequacy of the State’s explanation for delay and the reasonableness of its conduct. This analogy reinforced the centrality of reasonableness in Article 8 delay analysis.
DB v Chief Constable of PSNI [2017] UKSC 7 and Edwards v Bairstow [1956] AC 14: These authorities framed the appellate restraint in disturbing a trial judge’s evaluative findings. NICA applied them to uphold Colton J’s fact-sensitive assessments, including the weight attached to the eventual positive outcome and to the limited evidence of health impacts.
Other jurisprudence referenced at first instance—MK (Iran), Anufrijeva, ME v Sweden, Bensaid, FWF—informed the High Court’s general Article 8 framework and the need for a robust, evidence-based showing of serious impact. NICA did not deviate from that approach.

2. The Court’s Legal Reasoning

a) The Salem filter and academic appeals

The court held that Order 59 RCJ does not require a respondent’s notice for the Court of Appeal to raise Salem. The appellant’s contention that other pending cases depended on this appeal was unsupported by evidence. NICA reiterated that delay claims are inherently fact-sensitive. On that basis, the appeal was close to being struck out as academic; the court proceeded only to clarify the first-instance guidance at [100].

b) The Article 8 test: aim versus standard

A central contribution of the judgment is its reframing of BAC. The phrase “as short-lived as possible” describes the aim of the State’s positive obligation; it is not the operative legal test. The dispositive standard, as NICA made explicit, is whether the asylum application was examined “within a reasonable time.” That necessarily invites an appraisal of the reasonableness of the State’s conduct during the relevant period, including the adequacy of explanations and steps taken to progress the claim.

c) Reasonableness is relevant—and required

Rejecting the appellant’s argument, the court held it would be wrong to exclude from the Article 8 analysis whether the State acted reasonably throughout. Reasonableness can cut both ways. If conduct was reasonable, that militates against a breach; if persistently unreasonable, it supports one. This aligns the Article 8 “delay” analysis with the logic of the Article 6 “reasonable time” cases.

d) Adjusting the standard: “unreasonable,” not “manifestly unreasonable”

Paragraph [100](iii) of the High Court’s guidance suggested that delay must be “manifestly unreasonable” to breach Article 8 in delay-only cases. The Court of Appeal adjusted that to “unreasonable,” subject to fuller argument in a future case. This is a nuanced but important calibration: it lowers the width of the doorway for potential breaches, while leaving intact the general expectation that egregious facts will be required where delay is the sole feature.

e) Fact-sensitivity and the weight of a positive outcome

The court endorsed Colton J’s view that once a positive decision has been issued, that will “weigh strongly” against a finding of breach—though not as a rule of law—because the insecurity and uncertainty central to Article 8 in this context will have ended. That position is consistent with BAC, where the lack of final determination persisted to judgment. NICA stressed the fact-sensitive nature of the weight to be given to a positive outcome and underscored appellate restraint (DB/Edwards).

f) Evidence of serious impact remains critical

The Court of Appeal upheld the first-instance conclusion that the appellant’s evidence of mental health impact was insufficient. It clarified that the judge did not demand “more evidence” as a legal prerequisite; rather, he found the evidential foundation on the facts to be inadequate. Delay alone can, exceptionally, establish a breach (again, BAC), but generally the claimant must point to serious, evidence-based interferences with private or family life beyond the ordinary anxieties inherent in waiting.

g) EB (Kosovo)’s “precariousness” and asylum law

NICA explained that an asylum seeker is not liable to removal pending determination, as a matter of UK and international law. The “very precarious situation” described in EB at [15] cannot be mapped directly onto asylum delay claims. The wider lesson from EB—that time may strengthen Article 8 claims by deepening ties or altering proportionality—survives, but with appropriate calibration to asylum procedure and protection norms.

h) Immigration Rules paragraph 333A

Paragraph 333A imposes an “as soon as possible” duty without prejudicing “an adequate and complete examination,” and sets an update duty once six months elapse or a revised timeframe is notified. The court noted that a breach of paragraph 333A does not, of itself, establish an Article 8 violation. The Rule’s own qualifier recognises that thoroughness may lengthen the process, and Article 8 analysis remains centred on reasonableness in the round.

i) Institutional limits: courts do not set timetables or allocate resources

Echoing Colton J, the Court of Appeal emphasised that while quicker, more effective decision-making is desirable, it is not for courts to prescribe time limits or direct resource allocation in this field. The State must provide a statutory framework and enforceable mechanism that delivers fair, consistent outcomes. Within that architecture, Article 8 can be engaged by unreasonable delay, but judicial remedies are not a vehicle for managerial re-engineering of the asylum system.

3. The Court’s Practical Framework (as refined)

Read together, the Court of Appeal’s reasoning suggests the following structured approach to Article 8 delay claims in asylum cases:

Step 1: Identify decision status.
- If a decision is pending: assess length of delay, reasons given, steps taken, communications, and the imminence of a decision. Consider whether, on the facts, the delay is unreasonable.
- If a decision has been made: a finding of breach will be exceptional; the end of insecurity will ordinarily weigh strongly against a breach (subject to evidence of serious past interferences and the overall reasonableness assessment).
Step 2: Evidence of impact.
- Delay-alone cases may succeed in extreme circumstances (e.g., BAC), but generally claimants must adduce specific, credible evidence of serious interference with private or family life—e.g., homelessness, inability to access required medical care, significant detriment to children’s welfare, or substantial impairment of family relationships.
Step 3: Reasonableness of State conduct.
- Scrutinise explanations and the chronology: volume of applications, complexity, linked processes (such as National Referral Mechanism decisions), and resourcing pressures can be relevant, but do not immunise unreasonable delay.
- The correct standard is “unreasonable” delay (not “manifestly unreasonable”), though the court left open fuller argument in a future case.
Step 4: Remedies.
- Where decision-making has concluded, declaratory relief and HRA damages will be difficult absent persuasive evidence of a past Article 8 breach. Mandamus and certiorari will often be moot.

Impact and Significance

1. Clarified test for Article 8 delay claims in asylum

The judgment provides authoritative guidance in Northern Ireland on how courts will analyse claims that delay in asylum decision-making violates Article 8:

The operative legal standard is “within a reasonable time,” not “as short-lived as possible.”
Reasonableness of the State’s conduct is integral to the analysis.
The threshold is “unreasonable” rather than “manifestly unreasonable.”

This calibration may make it marginally easier, in principle, to argue for an Article 8 breach than under a “manifestly unreasonable” threshold, but the judgment simultaneously reaffirms the stringent, fact-sensitive inquiry and the need for concrete evidence of serious impact in most cases.

2. Positive outcomes reduce the prospects of damages-only litigation

The court’s robust view that a final, positive decision “weighs strongly” against finding a breach indicates that damages-only claims founded on past delay will be challenging unless there is cogent evidence of serious historical harm and unreasonable State conduct. This may deter satellite litigation after grant of status, absent exceptional facts.

3. System design and judicial role

By declining to prescribe hard timelines or direct resources, the court underscores institutional boundaries. Strategic litigation aimed at managerial transformation of asylum processing is unlikely to succeed through Article 8 alone. The focus will remain on whether, on the facts of an individual case, the State acted reasonably and whether serious interferences occurred.

4. The Salem message: academic appeals will usually be declined

Although the court entertained the appeal to refine the law, it signalled that, absent evidence of a broader class of pending cases, appellate courts will use the Salem filter to decline to adjudicate moot disputes. Practitioners should expect robust case management scrutiny on academic appeals, and ensure they can demonstrate continuing utility beyond the individual case.

5. Practice implications: authorities discipline

The court’s censure of counsel for exceeding the 12-authority limit (PD1/2020, Appendix 3 [6])—and for producing unheralded additional bundles—carries a clear warning of potential costs sanctions. Expect firmer judicial enforcement of citation discipline.

Complex Concepts Simplified

Salem principle: Appellate courts generally avoid deciding moot or purely academic issues in public law unless a point of general public importance warrants determination and is likely to recur. Evidence that “other cases” depend on the outcome is crucial.
Article 8 positive obligation: Beyond restraining unjustified State interference, Article 8 may require the State to adopt effective procedures that protect private and family life—including timely asylum decisions. The question is whether the State examined the case within a reasonable time, considering the reasonableness of its conduct.
“As short-lived as possible” vs. “reasonable time”: “As short-lived as possible” (from BAC) expresses the desired result—minimising insecurity and uncertainty—not the legal test. The test is whether the claim was examined within a reasonable time.
DB/Edwards appellate restraint: Appellate courts are slow to interfere with a trial judge’s evaluative or fact-sensitive findings. They will intervene only for errors of principle or assessments outside the permissible range.
Immigration Rules paragraph 333A: The Home Secretary must decide asylum applications “as soon as possible,” but not at the expense of an “adequate and complete examination.” Missing a notified timeframe does not automatically equal an Article 8 breach.
“Precariousness” in EB (Kosovo): EB recognised that prolonged delay can alter the proportionality of removal, but asylum seekers are not liable to removal while their claims are pending. The EB insight about strengthening Article 8 claims over time remains relevant, but must be adapted to the asylum context.
National Referral Mechanism (NRM): A system to identify potential victims of modern slavery. Linked processes (like NRM inquiries and conclusive grounds decisions) can affect timelines; courts will consider their relevance in assessing overall reasonableness.

Practical Guidance for Future Cases

Build a clear chronology of the decision-making pathway, including linked processes (e.g., NRM) and all correspondence, to test reasonableness of State conduct.
Adduce specific, credible evidence of serious impact: medical reports, expert evidence, proof of homelessness or destitution, educational disruption for children, and interference with family life.
Address the State’s explanations directly: show why they fall short of reasonable conduct in the circumstances, not merely that they exist or reflect systemic pressures.
If seeking damages post-grant, be realistic: the positive decision will likely weigh heavily against a past breach unless the record evinces clearly unreasonable delay and demonstrable serious harm.
On appeal, be prepared to justify why the case is not academic under Salem, with tangible evidence of wider utility or pending cases raising the same point.
Comply strictly with the authorities cap and any practice directions; flag any need to exceed limits in advance.

Conclusion

JR 247 v SSHD crystallises the governing approach to Article 8 delay claims in the asylum context in Northern Ireland. The court decisively centres the analysis on whether the application was examined within a reasonable time, holding that the reasonableness of the State’s conduct is integral to that assessment. It clarifies that “as short-lived as possible” is an outcome-oriented exhortation from Strasbourg rather than the operative legal standard, and it adjusts the threshold to “unreasonable” delay rather than “manifestly unreasonable,” subject to fuller argument in a future case.

Equally, the court underscores that these disputes are highly fact-sensitive: delay alone will rarely suffice (though it can, in exceptional cases such as BAC), and claimants must typically produce specific, convincing evidence of serious interference with private or family life. A positive final decision will often weigh strongly against finding a breach.

Finally, the decision reaffirms the Salem filter’s bite, signalling that academic appeals in this area will usually be declined unless they truly present a point of general importance. Alongside a firm reminder on citation discipline, JR 247 offers a calibrated, practical framework for courts and practitioners navigating the intersection of asylum processing timelines and Article 8 rights.