Mahmut Cakabay v The Secretary of State for The Home Department (Cakabay No2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN,LORD JUSTICE POTTER,LORD JUSTICE PETER GIBSON |
| Judgment Date | 30 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0630-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 97/1649/4 |
| Date | 30 June 1998 |
[1998] EWCA Civ J0630-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN's BENCH DIVISION (CROWN OFFICE LIST)
(Mr. Justice Lightman)
Royal Courts of Justice
Strand, London, WC2A 21L
Lord Justice Peter Gibson
Lord Justice Schiemann
Lord Justice Potter
97/1649/4
98/00051/4
and
and
ANDREW NICOL QC & MARK HENDERSON (instructed by Howe & Co., London, W5 2BS) appeared on behalf of the Appellant
RICHARD PLENDER QC (instructed by Treasury Solicitor, London, SW1 9JS) appeared on behalf of the Respondents
This appeal raises in the context of immigration law some important questions as to the legal regime governing repeated applications by an applicant for the same relief. Where a person claims asylum, has his claim rejected by the Secretary of State and has exhausted the appellate process, but then makes a second claim for asylum which the Secretary of State does not grant, what further remedies are available to the applicant? That is the underlying issue before the Court.
THE FIRST CLAIM FOR ASYLUM
The appellant Mr Cakabay arrived in this country on 26. June 1996. He needed permission to enter (Immigration Act 1971, s.1.) He claimed asylum and asked for permission to enter on that basis. S.4 of the 1971 Act provides that the power to give or refuse leave to enter shall be exercised by Immigration Officers. However, Immigration Rule 328 provides that all asylum applications will be considered by the Secretary of State. He did so and refused the application on 30 August 1996. Immigration Rule 331 provides that in such circumstances the Immigration Officer will then resume his examination in order to determine whether or not to grant to the person seeking leave to enter leave under any other provision of the Immigration Rules. The asylum application having been refused, the Immigration Officer, on 11 September 96 refused leave to enter on two grounds
1. You have applied for asylum in the United Kingdom. The Secretary of State has decided to refuse your application for the reasons set out in the attached notice.
2. You have failed to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing your identity or nationality.
S.13 of the 1971 Act enables a person who is refused leave to enter to appeal to an adjudicator. However, the Asylum and Immigration Appeals Act 1993 created a special regime in relation to claims for asylum. A claim for asylum means
"a claim made by a person that it would be contrary to the United Kingdom's obligations under the Convention 1 for him to be removed from or required to leave the United Kingdom" : s.1 of the 1993 Act.
The right to appeal to an adjudicator under s.13 of the 1971 Act was excluded 2 by the 1993 Act and
there was substituted a right to appeal to a special adjudicator 3. The presently crucial provision is in s.8(1)
"A person who is refused leave to enter … may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the U.K.'s obligations under the Convention."
Mr Cakabay appealed to a special adjudicator. His appeal was dismissed. The Immigration Appeal Tribunal refused leave to appeal and leave to move for Judicial Review of that decision was also refused. In the present proceedings Mr Cakabay can not and does not raise any complaint as to the disposal of his first claim for asylum.
THE SECOND CLAIM FOR ASYLUM
Three days after leave to move for Judicial Review in relation to the first claim was refused, Mr Cakabay's solicitors made further representations, once more claiming asylum on his behalf. Faced with such further representations, the task of the Secretary of State is set out in IR 346.
"Where an asylum applicant has previously been refused asylum ………. the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 (Footnote4) will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:
(1) is not significant; or
(2) is not credible; or
(3) was available to the applicant at the time when the previous application was refused or when any appeal was determined."
The Secretary of State decided not to treat the representations as a fresh claim to asylum. It is that
decision ("the categorisation decision") which gave rise to two sets of Judicial Review proceedings before Lightman J ("Cakabay 2" and "Cakabay 3") against whose decisions Mr Cakabay appeals.
For the purpose of exposition, although ultimately of no significance, it is helpful to explain what those two proceedings were. Cakabay 3 arose out of an attempt by Mr Cakabay to appeal the categorisation decision. It was an application by the Secretary of State for an order preventing the Immigration Appellate Authority from entertaining the appeal against the categorisation decision. It raised the first question ("the Appeal Question") before the Court : was the judge right to hold that a categorisation decision could not be challenged by way of appeal.
Cakabay 2 was an application by Mr Cakabay for an order quashing the categorisation decision. It raises the second question ("the Precedent Fact Question") before the Court : was the judge right to hold that a categorisation decision can only be challenged on what are customarily referred to as Wednesbury grounds, or can it also be challenged on the basis that the Court should itself decide as a matter of precedent fact whether or not the categorisation decision was correct.
THE NEED FOR CATEGORISATION
Before turning to consider these two questions it is helpful to indicate why the need for categorisation arises. What follows is not substantially in dispute between the parties.
The background to the problem is the desire of the United Kingdom to abide by its obligations under the Geneva Convention.
The Geneva Convention provides in Article 33
"1. No contracting state shall expel or return ("Refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom will be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
By Article 1A of the Convention as amended by the Protocol a refugee is any person who:
"owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ………"
It is manifest that if a state acts in breach of its obligation the consequences to the individual can be disastrous. Parliament has therefore provided in s. 6 of the 1993 Act that
"During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."
Moreover Parliament has provided that the claimant may not be removed from or required to leave the United Kingdom whilst he is pursuing the appellate process 5.
The Statute makes no express provision as to what is to be done in the case of repeated claims for asylum by the same person. The second claim may be identical to the first ("a repetitious claim") or may be different ("a fresh claim"). It is common ground that a fresh claim attracts all the substantive and procedural consequences of an initial claim whereas a repetitious claim does not.
In the case of a repetitious claim no more is required to be done : the first decision has ensured that the United Kingdom has complied with its obligations under the Convention. S.6 of the 1993 Act creates no inhibition on the claimant's removal: the Secretary of State has on the occasion of his decision on the first claim decided the repetitious claim. So far as the decision on the claimant's repetitious application for leave to enter is concerned, the claimant will be told that leave has already been refused and that there is no need for any new decision.
In the case of a fresh claim the claimant is protected by section 6 and the Secretary of State must make a decision on his fresh claim. If the Secretary of State decides to grant asylum and the person has not yet been given leave to enter, the Immigration Officer will grant limited leave to enter (Footnote6). By contrast, if the Secretary of State decides not to grant asylum, the Immigration Officer will (Footnote7) resume his examination to determine whether or not to grant the application for leave to enter and then determine it. Assuming no factual change in relation to non-asylum matters, the Immigration Officer will refuse it and the applicant will have his rights of appeal and will be protected during the appellate process.
The difficulty lies in the cases where the claimant asserts that he has made a fresh claim whereas the Secretary of State categorises it as repetitious. By whom...
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