EU Directive on Refugee status does not enhance asylum rights under Strasbourg Convention

Directive 2004/83, which recognised the right to asylum as part of EU, did not alter the jurisprudence of the European Court of Human Rights that asylum decisions did not constitute determinations of civil rights under Article 6 of the Convention, and consequently a foreign national had no right under Convention law to claim for damages for the delay in processing his asylum application.

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The appellant foreign national suffered from mental illness, and the respondent secretary of state had accepted responsibility under Regulation 343/2003 for determining his claim. However, nothing was done to progress the application, despite claims by the appellant that the delay was affecting his mental health. Eventually his asylum claim was refused, as were his appeals against the determination. However, was eventually granted indefinite leave to remain on compassionate grounds. The appellant unsuccessfully brought proceedings for damages on the grounds that the delay in determining his case had caused or aggravated his mental illness, and deprived him of the opportunity to present his case during a window of lucidity. He appealed against the decision of the Administrative court refusing his claim for damages ((2009) EWHC 3452(Admin)).

He based his claim on four grounds:

i) The delay in dealing with his case was so unreasonable as to be unlawful;

ii)The unlawful delay caused loss in two respects: damage to his mental health, and loss of a better-than-even (or at a least realistic) chance of success in his asylum claim;

iii) His claim to asylum was a “civil right” for the purposes of Article 6 of the European Convention, for which he had a right to a hearing within a reasonable time, breach of which gave him a claim for compensation (or “just satisfaction”) under the Human Rights Act 1998;

iv) Alternatively, that under EU law he had an unconditional right pursuant to art.16(1)(b) of the 2003 Regulation that the secretary of state would complete the examination of his application within a reasonable time; and finally, that by virtue of Directive 2004/83 his claim for asylum came within the autonomous meaning of “civil right” for the purposes of Article 6 of the Human Rights Convention, for which he had a right to a hearing within a reasonable time and breach of which gave him a claim for compensation under the Human Rights Act 1998. He also contended that the delay caused damage to his mental health and to his chance of success in his asylum claim.

Held:

Appeal dismissed. The Court of Appeal did accept that the Secretary of State’s delay had been unreasonable. But as far as Regulation 343/2003 was concerned, it provided no legal basis for a claim. That Regulation was concerned with the allocation of responsibility as between states, not the creation of personal rights. There was nothing in it that could be said to create a personal right to have the claim determined within any particular time. That was not its purpose. It was also significant that Directive 2005/85 governed the timing of the consideration of the asylum claim, and set minimum standards for procedures for granting refugee status. Although it was not in force at the time this application was considered, the existence of a specific provision governing the handling of claims to refugee status weakened the argument that such an obligation was already implicit in the 2003 Regulation.

The argument based on Directive 2004/83 was also ill founded. Whilst it was true that the Directive for the first time recognised the right to asylum as part of EU law, rather than simply an obligation under Convention relating to the Status of Refugees 1951 (United Nations), it made no difference to the jurisprudence of the European Court of Human Rights, which establishes that asylum decisions did not fall within Article 6(1) of the Convention. The leading authority on this, Maaouia v France (39652/98) (2001) 33 EHRR 42 ECHR establishes this beyond doubt and it is reflected in domestic law by cases like MNM v Secretary of State for the Home Department (2000) INLR 576 IAT.  Although there was no reference to the Directive in some of the caselaw which postdated it, it would be surprising if at least some members of the court would not have had it in mind and referred to it if they thought it relevant. It was also important to remember that the scope of the Convention, and the jurisdiction of the ECHR, extended to countries outside the scope of the 2004 Directive and of EU law. It would be surprising if the autonomous meaning of an expression under the Convention was to be materially affected by new laws that did not extend to all the areas covered by the Convention itself.  In any event, against such a consistent line of Convention authority it would not be appropriate for a domestic court to develop a distinct jurisprudence, where a departure from the established jurisprudence would have wide-ranging implications, not confined to the United Kingdom. As for the argument concerning the appellant’s mental health, the Court of Appeal accepted that there had been fluctuations in his mental condition during the period prior to the determination of his claim. However, it was clear that there was no realistic basis that if the asylum claim had been heard earlier that he would have been able to present a more convincing case than that which was rejected. In any event, it followed that even if it was found that the delay did cause or aggravate his condition, there would be no liability in damages under either EU law or the Convention.

COMMENT (March 2010)

The appellant’s argument in relation to the Qualification Directive raises questions of some difficulty in the relationship between Convention and EU law, and how the HRA should be interpreted under both. There is no doubt where the Strasbourg Court has laid the limits of Article 6 in matters of asylum and immigration; in Maaouia v France it said:

That case was not about refugee status, but concerned an exclusion order following conviction for a criminal offence. However, the ruling  is accepted by the Court as confirming the previous case-law on that issue, and confirm the view, expressed by Nicolas Bratza in that case, that

In a wider context, the autonomous meaning given to Civil Rights under Article 6 means that article 6(1) is likely to be engaged when the applicant has public law rights which are of a personal and economic nature and do not involve any large measure of official discretion. The right of asylum lies par excellence at the discretion of States, and is not a right of the individual; no individual, including those seeking asylum, may assert a right to enter the territory of a State of which that individual is not a national. Challenging this assumption, counsel for the appellant argued that the Qualification Directive had made a radical change to ths notion. Refugee status and subsidiary protection have now become part of EU law, and therefore of domestic law. He submitted for example that Article 13 provides in mandatory terms that member states “shall grant refugee status” to someone who qualifies as a refugee under the preceding chapters, and once such protection is granted economic rights follow under Articles 26 and 28, thus elevating refugee status to a personal right under Article 6.

Carnwath LJ, giving the leading judgment, did not accept that this made any difference to decades of Strasbourg Commission and court case law, where both institutions constantly held that the procedures followed by public authorities to determine whether an alien should be allowed to stay in a country or should be expelled are of a discretionary administrative nature, and do not involve the determination of civil rights within the meaning of Article 6(1). The presence of discretion is not a deciding factor; even if the Refugee Convention obliges a signatory state to grant asylum, the decision is still a public law one and therefore not determinative of a civil right within the meaning of Article 6.

It is worth noting that Sedley LJ did not altogether agree with the rest of the judges’ interpretation of Maaouia. That judgment certainly put proceedings for the removal of unauthorised aliens outside the protection of the article; but Sedley LJ did not think that necessarily answered the present issue:

Even if this were the effect of Maaouia, Sedley LJ observed, it would require reconsideration in the light of the Qualification Directive, something which the Strasbourg court has so far not apparently been invited to do. What it has done – and this is another string to Mr Bedford’s bow – is demonstrate, for example in relation to social security rights, that the autonomous meaning of civil rights has no very clear boundary.

However it is not for the national courts to take the unilateral step of changing the status of refugee claims under the Convention to accord with the EU Directive. Lord Bingham’s admonition in Ullah, cited by Carnwath LJ, has constituted a strong imperative not to move ahead of Strasbourg’s jurisprudence:

The emphasis, arguably should have been on “no more”, not “no less”, as Lord Brown pointed out. It woud make for a contradictory and potentially unworkable system of human rights law if the UK were tempted to go beyond the bounds of what it was required to do by the Convention granting rights to members of non-signatory states that they found were not recognised in other Convention countries.