Mahmud's (Omar) Application for Judicial Review
| Jurisdiction | Northern Ireland |
| Neutral Citation | [2021] NIQB 6 |
| Date | 22 January 2021 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No: [2021] NIQB 6
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: FRI11390
ICOS No: 19/8179
Delivered: 22/01/2021
QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
___________
IN THE MATTER OF AN APPLICATION BY OMAR MAHMUD
FOR JUDICIAL REVIEW
___________
Mr Frank O’Donoghue QC and Mr Robert McTernaghan BL
(instructed by MacElhatton Solicitors) for the Applicant
Mr Aidan Sands BL (instructed by the Crown Solicitor’s Office) for the Respondent,
the Secretary of State for the Home Department
___________
INDEX
Subject Paragraph/s
INTRODUCTION [1 ] – [11]
Part I Asylum History [12] - [18]
Part II Refusal of Fresh Claim Submissions [19] - [60]
Part III Medical Grounds Post-AM Zimbabwe [61] - [77]
Part IV Withdrawal of Asylum Support [78] - [141]
Conclusion [142] - [145]
___________
FRIEDMAN J
INTRODUCTION
[1] In R (BA (Nigeria) and PE (Cameroon)) v Secretary of State for the Home
Department [2009] UKSC 7[1], Lord Hope began his judgment with the following
remarks:
“The ability of asylum seekers who make unsuccessful
claims to be allowed to remain to discover further reasons
why they should not be removed from the country where
they seek refuge is an inescapable feature of any system
that is put in place to meet a State's obligations under the
Geneva Convention on the Status of Refugees and Article
3 of the European Convention on Human Rights. The
2
opportunity for further reasons to be put forward is
enhanced by the fact that a series of decisions may need to
be taken before a person's immigration status is resolved.
Various measures have been put in place by the
United Kingdom to deal with this phenomenon.”
The applicant, Mr Omar Mahmud, has made further submissions in support of an
asylum claim, which was previously refused by the Secretary of State and the refusal
remained upheld by the First-tier Tribunal by way of a full merits appeal. Those
further submissions have been rejected by the Home Office and at the same time it
has exercised its power to cancel the applicant’s financial and accommodation
support leaving him homeless and without resort to livelihood or subsistence. The
logic of such an action is that if there is no discernible legal impediment to departing
the country, any adverse consequence of removing support payments are said to lie
with the migrant’s choice to remain, and not the State’s choice to no longer subsidise
his stay. This is the backdrop to a situation that befell the applicant from the
summer into the winter of 2018-2019 when a set of further fresh claim submissions
were rejected by the Home Office and the applicant’s asylum support remained
cancelled leaving him, according to his evidence and the evidence of others, to live
on the street.
[A] Grounds of Judicial Review
[2] By the terms of his Order 53 Statement the applicant has leave to challenge
the conduct of the respondent Secretary of State as unlawful on two grounds:
(i) Refusing the applicant’s fresh application/further submissions in support of
his asylum claim on the 23 August 2018; and
(ii) Refusing the applicant accommodation and ancillary support (whether
pursuant to section 4 and/or 95 of the Asylum and Immigration Act 1999 or
Article 3 ECHR or otherwise howsoever) pending the determination of his
fresh application/further submissions made on the 23 August 2018.
[B] Overview
[3] The mere making of submissions in support of a fresh claim does not alter the
status of the claimant whose legal existence and concrete situation in this country is
marginal. That is because he is prohibited from establishing a livelihood, has no
right to subsistence, nor right of abode. Also without the formal acknowledgement
that he has a fresh claim he is at risk of being removed or required to leave
immediately. To say that the applicant’s situation is marginal does not mean,
however, that he exists outside the protection of a legal framework. A failed asylum
seeker is someone who has exhausted his formal avenues of appeal against a
negative decision on his asylum claim. At that stage, and pending his removal or
voluntary exit from the United Kingdom, he is entitled to make further submissions
3
in support of the existence of a fresh claim and the Home Office is under a duty to
consider them carefully in accordance with paragraph 353 of the Immigration Rules
and otherwise in conformity with public law. The requisite care in considering such
submissions is derived from the consequences of their erroneous rejection, which
could be death, torture and persecution. While those submissions are under
consideration it is open to the claimant to apply for discretionary asylum support
under section 4(2) of the Asylum and Immigration Act 1999 (the ‘1999 Act’). The
Home Office is under a duty to provide that support in order to avoid a claimant
suffering from a breach of his rights under the European Convention of Human
Rights (‘ECHR’), as provided for by regulation 3(2)(e) of The Immigration and
Asylum (Provisions of Accommodation to Failed Asylum Seekers) Regulations 2005
(the ”2005 Regulations”). This mandatory intervention arises from the special
situation of the migrant who as a condition of his temporary entry into the country
has “no recourse to public funds” such as to enable him to independently acquire
shelter, food, or what Lord Bingham in one of the key authorities termed the “most
basic necessities of life.”
[4] This applicant has made several rounds of further fresh claim submissions to
the Home Office in an attempt to regularise his status. In between the rejection of
his sixth and seventh set of submissions, the respondent made a decision to
withdraw the applicant’s accommodation and ancillary support under section 4(2)
on grounds that there was now no longer any reason to avoid the consequences of
the withdrawal of support as he was able to return his country of origin.
[5] The applicant then made yet further submissions in support of a fresh claim
and at the same time made an application for the renewal of his under section 4(2).
The Home Office refused his fresh claim submissions, but the application for
renewed asylum support was not processed due to apparent technical error. The
applicant then made his eighth further submission in support of a fresh claim and at
the same time sought to renew his asylum support. The refusals on both fronts are
the subject matter of Grounds 1 and 2, although it also appears that the asylum
support application was not properly processed in so much as all of the information
that was sent to the Home Office via its established channels was not taken into
account.
[6] The applicant remained destitute without any right to work, with no
temporary support to enable his accommodation until judicial review proceedings
were issued on 25 January 2019 together with an application for interim relief. At
that stage, the respondent recognised her duty to provide support to the applicant
by virtue of the judicial review proceedings being brought. The application for
interim relief was agreed by consent on 7 February 2019.
[C] The Issues
[7] The issues before me on Ground 1 are whether the refusal of the relevant
eighth fresh claim submission was lawful on grounds of error of law and/or
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