As a direct access immigration barrister it is rare to see cases that are pre the Human Rights Act 1998 and its coming into force on 2 October 2000. However, my training, in part under the excellent David Palmer, made it quite clear when considering a case always look at the basics first rather than looking at the latest activity.
Two clients in the same week appeared looking sheepish. They were both in their 50s and both had the look of them as having not had the opportunity to properly enjoy life to its fullest.
Both clients had claimed asylum in 1998 /1999 and yet had not had a decision. It was shocking.
I have seen less and less of these cases, but occasionally they pop up.
There is an argument that their cases fall under the old and much derided legacy scheme, particularly if their cases are being handled by Older Live Cases Unit, the successor regime to the CAAU and the CRD. I remember losing a few cases where the Secretary of State would rely on the comments of Collins J in FH and others in 2007 saying that there might be cases that are not concluded by 2011.
How right he was. These are cases that have not been concluded by 2011 but have not been concluded by 2017. I wonder what the outcome of FH and others would have been had the Home Office stated to the Court that actually they might not conclude the exercise within 5 years give or take a year but actually 11 or so. Particularly given that Collins J stated that those who were compelled to wait would not suffer. I have not seen any attempt by the Home Office to treat my clients with any humanity and in one case which will be heading to JR the HO deny that they have anything to do.
Even if they can wriggle out of the legacy argument there is still the Pardeepan concession made in 2002 that those who had claims made prior to 2 October 2000 would have another Human Rights Appeal notwithstanding what had happened to the asylum case.
What I would advise anyone to do who has been waiting and waiting is to get in touch. That you have been forced to wait 19 or 18 years for a decision is not in my view legal, absent special circumstances. What of the argument that they should wait another year and make an application under 20 year rule, well the problems are two fold, how many illegals who have kept themselves under the radar have documentary evidence going back 20 years and secondly until they get to the 20 year cut off they are at risk of detention and removal and indeed certification of their claim and criticism that they did not make the claim until they were detained.
In my view if you have been the subject of an excessive delay, please come and see me as soon as possible or if not me than an other reputable barrister /lawyer that understands the law and particularly the law of delay.
An advantage I can offer is that I have been practising immigration more or less solely since 1999 and have seen the coming (and going) of various acts, including the 1999 Immigration Act, the 2002 Nationality, Immigration and Asylum Act (as much amended) the Immigration (Treatment of Claimants Act etc) 2004 amongst others and can hopefully provide you with an answer and a strategy for the way forward.
Paul Turner is an experienced and highly regard direct access immigration barrister who is the head of Imperium Chambers , 32 Beford Row, London, WC1R 4HE, 07432 101 211 or 0207 242 3488 and a member of the chambers of Goldsmith Chambers, the Temple the chambers of Tony Metzer QC and who can be contacted 7 days a week for assistance.