S, R (on the application of) v First-Tier Tribunal [2012] EWHC 1815 (Admin) (04 July 2012)

S, R (on the application of) v First-Tier Tribunal [2012] EWHC 1815 (Admin) (04 July 2012)

Section 83 of the Nationality, Immigration and Asylum Act 2002, which restricts the statutory right of appeal against refusal of asylum to those granted discretionary leave for more than one year, is not incompatible with Article 39 of Directive 2005/85/EC. The statutory scheme, viewed as a whole and including the availability of judicial review, provides an effective remedy as required by EU law. There is no requirement for an immediate statutory appeal on the merits, and the claimant was not denied an effective remedy. The best interests of the child are sufficiently safeguarded within the existing framework.

Citation
[2012] EWHC 1815 (Admin)
Parties
Claimant: The Queen on the Application of S; Defendant: First-Tier Tribunal
Jurisdiction
England and Wales
Judgment Date
04 July 2012
Procedural Posture
Judicial Review / Final Judgment After Substantive Hearing
Outcome
Claim dismissed
Legal Topics
Asylum Appeals, Effective Remedy Under EU Law, Children's Rights in Asylum Procedures, Compatibility of UK Law With EU Directives, Judicial Review as Effective Remedy
Immigration Law European Union Law Administrative Law Human Rights Law Asylum Appeals Effective Remedy Under EU Law Children's Rights in Asylum Procedures Compatibility of UK Law With EU Directives +1 more

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Parties

The Queen on the Application of S

Claimant

First-Tier Tribunal

Defendant

Procedural Posture

Judicial Review / Final Judgment After Substantive Hearing

Legal Issues

  1. 1 Whether section 83 of the Nationality, Immigration and Asylum Act 2002, restricting statutory right of appeal to those granted discretionary leave for more than 12 months, is incompatible with EU law (Article 39 of Directive 2005/85/EC)
  2. 2 Whether judicial review constitutes an effective remedy under Article 39 of the Procedures Directive
  3. 3 Whether the statutory scheme denies an effective remedy to unaccompanied children refused asylum but granted short discretionary leave

Ratio Decidendi

Section 83 of the Nationality, Immigration and Asylum Act 2002, which restricts the statutory right of appeal against refusal of asylum to those granted discretionary leave for more than one year, is not incompatible with Article 39 of Directive 2005/85/EC. The statutory scheme, viewed as a whole and including the availability of judicial review, provides an effective remedy as required by EU law. There is no requirement for an immediate statutory appeal on the merits, and the claimant was not denied an effective remedy. The best interests of the child are sufficiently safeguarded within the existing framework.

Court Disposition

Claim dismissed