Lemba Kalunga v Secretary of state for the home department
| Jurisdiction | England & Wales |
| Year | 1994 |
| Date | 1994 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Balcombe, Staughton, Rose LJJ
R de Mello for the applicant
Miss L Giovannetti for the respondent
Case referred to in the judgments:
R v Secretary of State for the Home Department ex parte Lemba Kalunga (unreported, QBD, 19 July 1994).
Political asylum refusal by the Secretary of State appeal dismissed further evidence submitted by representatives considered by Secretary of State removal directions maintained whether representative's letter and submission of fresh evidence constituted a second application for asylum whether there could be circumstances in which successive applications for asylum could be made, each giving rise to rights of appeal categorisation of the nature of an application a matter for the Secretary of State. Immigration Act 1971 s. 16 sch. 3 para. 16(2): Asylum and Immigration Appeals Act 1993 ss. 1, 6, 8, sch. 2: Immigration Appeals (Procedure) Rules 1984 r. 35: Asylum Appeals (Procedure) Rules 1993 r. 26: HC 251 paras. 180L, 180N.
Renewed application for leave to move for judicial review, following refusal by May J. The applicant had been refused asylum by the Secretary of State: an appeal had been dismissed by a special adjudicator. Subsequently the applicant's representatives had sent to the Secretary of State further evidence germane to a claim for asylum. That evidence the Secretary of State considered but maintained his refusal and the original removal directions.
Counsel argued that the representative's letter and the fresh evidence grounded a new second application for asylum. The Secretary of State had maintained his view that they constituted no more than a request to review the maintained decision. Accordingly in the view of the Secretary of State, no further right of appeal arose in the present case.
Held
1. The provisions of the 1993 Act could give rise to successive applications for asylum, each of which if refused would give the applicant a right of appeal.
2. It was however for the Secretary of State to determine whether, in each case, an approach to him was by way of a fresh application for asylum or merely amplification of the grounds on which an existing application for asylum had already been made.
3. Such a determination by the Secretary of State was susceptible to challenge, but not in this instant case.
Balcombe LJ: I will ask Rose LJ to give the first judgment.
Rose LJ: There is before the court a renewed application for leave to move for judicial review following refusal of leave by May J on 19 July 1994. The applicant seeks to challenge decisions of the Secretary of State for the Home Department in relation to the applicant's application for asylum. In particular, the Form 86 identifies as the subject of challenge the refusal to grant asylum by letter of 14 June 1994; the refusal to refer the matter under section 21 of the 1971 Immigration Act for further consideration in his letter of 8 July 1994; and his refusal to issue a fresh notice of refusal and to acknowledge in the applicant his right of appeal under section 8 of the Asylum and Immigration Appeals Act 1993.
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