Introduction

The case of AS v Advocate General for Scotland ([2020] CSOH 94) serves as a pivotal judicial review in the realm of asylum law within the Scottish Court of Session. The petitioner, an Egyptian national, challenged the prolonged delay in the determination of his asylum claim filed in September 2018. Represented by Drummond Miller LLP, the petitioner contended that the delay had become unlawful, seeking a court order compelling the Secretary of State for the Home Department (SSHD) to issue a decision within a specified timeframe. The Advocate General for Scotland defended the delay, citing complexities heightened by the Covid-19 pandemic.

Summary of the Judgment

Lady Wolffe delivered the opinion of the Outer House, ultimately dismissing the petitioner's application for judicial review. The court determined that the petitioner did not possess an established or settled status, classifying his position as that of an asylum seeker — an interim status pending the outcome of his asylum application. Consequently, the appropriate standard to evaluate the delay was its rationality rather than its legality based on an established right. The court found that the SSHD's reasons for delay, including the complexity of the case and the impact of Covid-19 restrictions on investigations, rendered the delay reasonable and not manifestly unreasonable. Additionally, the petitioner failed to demonstrate particular detriment arising from the delay, further weakening his claim.

Analysis

Precedents Cited

The judgment heavily referenced several key precedents that shaped the court’s analysis:

• R v Lancashire CC, ex parte Huddleston [1986]: Established that once an applicant is granted leave for judicial review, the respondent authority must engage in full and fair disclosure.
• Belize Alliance of Conservation NGOs v Department of the Environment [2004]: Emphasized the duty of public authorities to cooperate and disclose relevant facts candidly during judicial reviews.
• R Quark Fishing Ltd v Secretary of State for Foreign and Commonwealth Affairs [2002]: Highlighted the high duty of public authorities to assist the court with accurate explanations of facts pertinent to the case.
• O&H v SSHD [2019] EWHC 148 (Admin): Outlined principles for determining unlawful delay, distinguishing between established rights and provisional statuses.
• R (FH) v SSHD [2007]: Introduced the notion that delays could be unlawful if "manifestly unreasonable" or if they cause specific detriments.
• R v Secretary of State ex p Mersin [2000]: Supported the idea that established rights must be honored without unreasonable delays.

These precedents collectively informed the court's approach to assessing whether the delay in the petitioner’s case was unlawful.

Legal Reasoning

The court's reasoning was grounded in determining whether the petitioner held an established or settled status, which would trigger a stricter standard for delays. The analysis concluded that the petitioner was an asylum seeker without a settled status, meaning his interim status did not automatically qualify for claims of unlawful delay based on established rights. Instead, the appropriate test was whether the delay was irrational — a high threshold requiring evidence of excessive or unjustifiable delay beyond the reasons provided by the SSHD.

The court scrutinized the SSHD’s justification for the delay, which included the complexity of the case and the operational disruptions caused by the Covid-19 pandemic. Given these factors, the court found the delay to be rational and within the department's discretion.

Furthermore, the petitioner failed to demonstrate any particular detriment resulting from the delay that would warrant judicial intervention, as required by precedent.

Impact

This judgment reinforces the threshold for claims of unlawful delay in asylum proceedings, particularly emphasizing the distinction between established rights and provisional statuses. It clarifies that asylum seekers without a settled status must meet a rigorous standard to prove that delays are manifestly unreasonable or cause specific detriments. The decision serves as a guiding precedent for future cases, delineating the boundaries of judicial review in the context of administrative delays and upholding the discretion of public authorities in managing complex asylum claims.

Complex Concepts Simplified

• Established Status: A legal classification where an individual has a recognized and settled right within the host country, such as permanent refugee status or family-based residency. Individuals with established status are afforded greater protection against administrative delays.
• Judicial Review: A legal process where courts examine the lawfulness of a decision or action made by a public body. It ensures that such decisions comply with legal standards and principles.
• Provisional Status: An interim legal position held by individuals awaiting a final decision on their application for asylum. This status does not confer the same level of protection or rights as an established status.
• Irrationality (Wednesbury Unreasonableness): A standard of review assessing whether a decision is so unreasonable that no reasonable authority would ever consider imposing it. It's a stringent criterion requiring clear evidence of illogical or unjustifiable decision-making.
• Specific Implement: A judicial remedy where a court orders a public body to perform a specific act, such as issuing a decision on an application.

Conclusion

The decision in AS v Advocate General for Scotland [2020] CSOH 94 underscores the judiciary's cautious approach in intervening in administrative delays related to asylum claims. By distinguishing between established and provisional statuses, the court delineates clear boundaries for claims of unlawful delay, emphasizing the necessity for petitioners to provide compelling evidence of manifestly unreasonable delays or specific detriments. This judgment not only reaffirms the discretion of public authorities in handling complex asylum cases but also sets a high bar for judicial challenges based on administrative delays. As such, it holds significant implications for future asylum litigation, prompting claimants to meticulously substantiate their claims of unlawful delay within the defined legal framework.