The Supreme Court has allowed three Albanian asylum applicants to apply for judicial review of decisions by the Refugee Applications Commissioner (RAC), finding that their challenge to the investigation process raised substantial grounds. The Court did not decide whether the RAC had unlawfully delegated any part of its work to contractors; that question remains for the judicial review hearing.
The appellants were I.G. and her daughters, F.G. and X.G., who are identified in the judgment only by initials. Their asylum applications were refused. They then sought leave in the High Court to challenge how those applications had been processed. The High Court refused leave, and later refused a certificate allowing an appeal to the Court of Appeal. The Supreme Court granted leave to appeal in June 2017.
The applicants argued that the RAC had allowed members of a case-processing panel, engaged as contractors, to investigate asylum claims and prepare draft reports. They said the final section 13 reports sent to the Minister were accompanied by drafts said to be identical, with the drafts signed by panel members and the final reports by two civil servants. They contended that the RAC’s staff had not themselves carried out the investigation required by section 11 of the Refugee Act 1996.
The RAC’s position, as summarised in the judgment, was that assistants could gather information and that approval of a contractor’s narrative did not establish that the Commissioner had failed to investigate the application. The Supreme Court noted that the High Court had heard the leave application ex parte, so there was no evidence from the RAC before it. Evidence from the respondent at a full hearing could change the picture.
Justice Dunne said the statutory scheme expressly allowed the RAC to delegate functions to its staff, while separate regulations permitted delegation to contractors for subsidiary protection work. Whether the steps taken by contractors in the asylum investigations amounted to unlawful delegation could only be determined after evidence and argument from both sides. At the leave stage, however, the applicants’ point was reasonable, arguable and weighty, and was not trivial or tenuous.
The Court also considered that another High Court judge had granted leave on the same legal issue in other cases. It held that, absent a cogent reason to distinguish those cases, the applicants should likewise have been granted leave. The Supreme Court allowed the appeals and held that the three appellants were entitled to apply for judicial review of the RAC decisions. It made no finding on the legality of the investigation process or on the ultimate merits of that challenge.