Following the grant of permission in TN and MA (Afghanistan) v SSHD [2013] EWCA Civ 1609, there is a listing for the appeal in the Supreme Court in April/May next year 2015.
When granting permission in TN the Supreme Court stayed applications for permission to appeal in EU and SU (Afghanistan) v SSHD [2013] EWCA Civ 12.
EU was the continuation of KA (Afghanistan) v SSHD [2012] EWCA Civ 1014 where the Court of Appeal held that before 2010 there had been systematic abuse of the right of unaccompanied children, who claim asylum in the UK, to count on the Secretary of State’s assistance in re-establishing contact with their families abroad.
More generally, we may term this violation of legal right a kind of public law illegality, albeit one that is justiciable on appeal in the Tribunal.
- The failure of family tracing is one kind: KA.
- Another would be the absence of a guarantee of effective remedy: TN.
- And yet another might be unreasonable delay: MK (Iran) v SSHD [2010] 1 WLR 2059 at §36.
More than anything there is debate over the correctness of the principle of so-called corrective relief. KA asserted its existence, but EU very much doubts its correctness. The point will now be resolved by the Supreme Court in TN.
In the meantime it may be appropriate to stay proceedings in the courts and the Upper Tribunal where public law illegality and corrective relief are critical to the outcome of an asylum appeal: See AB (Sudan) v SSHD [2013] EWCA Civ 921 at §31.
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