R (MN (Tanzania)) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Maurice Kay,Lord Justice Moses,Lord Justice Sullivan
Judgment Date04 March 2011
Neutral Citation[2011] EWCA Civ 193
Docket NumberCase No: C4/2010/2063

[2011] EWCA Civ 193

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(Mr Justice Owen)

Before : Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division

Lord Justice Moses

and

Lord Justice Sullivan

Case No: C4/2010/2063

Ref No: CO10212010

Between
The Queen on the Application of MN (Tanzania)
Appellant
and
Secretary of State for the Home Department
Respondent

Mr Ian MacDonald QC and Mr Mikhil Karnik (instructed by Fadiga & Co) for the Appellant

Miss Joanne Clement (instructed by Treasury Solicitors) for the Respondent

Hearing date: 21 February 2011

Lord Justice Maurice Kay

Lord Justice Maurice Kay :

1

There was a time when the development of the law by judicial decision progressed at a measured pace and had the appearance of being methodical. Today the pace can be frenetic and it sometimes happens that cases are decided without reference between them because, in the torrent of information, one court is left unaware of what another has decided. Steps are taken to try to ensure that this does not happen but they are not always successful. This appeal is concerned with a recent example.

2

The first issue in this case relates to the test to be applied on an application for judicial review of the refusal of the Secretary of State to treat further representations as a fresh claim pursuant to Rule 353 of the Immigration Rules. Rule 353 provides:

"When a human rights or an asylum claim has been refused … and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim."

3

To amount to a fresh claim, the submissions have to be "significantly different from the material that has already been considered". They must also be considered to have "a realistic prospect of success" before a putative Immigration Judge. The consequences are important. If there is a fresh claim, the applicant has an in-country right of appeal to the Tribunal upon rejection of the claim by the Secretary of State. If the Secretary of State refuses to treat the further submissions as a fresh claim, the refusal can only be challenged by way of judicial review. The question then arises: is the challenge limited to Wednesbury grounds, albeit on the basis of anxious scrutiny? Or is the judge in the Administrative Court to reach his own decision on whether the further submissions amount to a fresh claim, in particular whether they satisfy the "reasonable prospect of success" test?

4

It is necessary to outline the development of the law in relation to the answers to these questions. The problem first arose before Rule 353 existed in its present form. In Regina v Secretary of State for the Home Department, ex parte Onibyo [1996] QB 768, the Court rejected a submission that whether further representations amounted to a fresh claim had to be treated as a question of precedent fact and concluded that the test for reviewing the decision of the Secretary of State was the Wednesbury test: per Sir Thomas Bingham MR, at pp 783–785.

5

The next milestone was WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, by which time Rule 353 had been promulgated. Buxton LJ (with whom Jonathan Parker and Moore-Bick LJJ agreed) trenchantly reiterated the Onibyo approach, but added that, whilst the test is one of irrationality, "a decision will be irrational if it is not taken on the basis of anxious scrutiny" (at paragraph 10). He also rejected a submission that the approach should be revisited now that the Nationality, Immigration and Asylum Act 2002, section 94, had enabled the Secretary of State to certify asylum and human rights claims as "clearly unfounded" and the approach to judicial review of a certificate had been expressed somewhat differently in Razgar v Secretary of State for the Home Department [2004] AC 368, at paragraph 17, per Lord Bingham:

"… the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator."

6

Thus, "fresh claim" and the "clearly unfounded" cases were set on different tracks, even though both involved the judicial review of decisions of the Secretary of State which denied an applicant a right or a further right of appeal to the Immigration Appeal Tribunal, as it then was.

7

ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348 , [2009] UKHL 6, was a case in which the Secretary of State had issued a section 94 certificate, after which the applicant had made further submissions. The Secretary of State then maintained her certification. The majority of the Appellate Committee (Lord Hope dissenting) held that the Secretary of State ought to have considered the further submissions under Rule 353 ("realistic prospect of success") rather than section 94 ("clearly unfounded") but that, since the "clearly unfounded" test is more generous to applicants, she would inevitably have come to the same conclusion under Rule 353. It was then held that, on judicial review of the certification, the test was Wednesbury, subject to anxious scrutiny, but their Lordships did not speak with one voice on how the test may operate in practice. I shall have to return to what they said. For the moment, I am concerned with the ways in which the Court of Appeal has approached the judicial review of Rule 353 cases after ZT. There are two lines of authority.

8

In AK (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 447, the Court was more concerned, in a Rule 353 case, with what their Lordships had said in ZT (Kosovo) about the differences, if any, between "clearly unfounded" and "no realistic prospect of success", Laws LJ observing that "these are deep waters" (at paragraph 33). This was but a stepping stone to his lead judgment in TK v Secretary of State for the Home Department [2009] EWCA Civ 1550.

9

TK had been listed to be heard on 8 October 2009 specifically to address the question of the judicial review test in Rule 353 cases after ZT and in the light of some earlier obiter remarks of Sedley LJ in TR (Sri Lanka) [2008] EWCA Civ 1549, at paragraph 33, which favoured a move away from the WM reiteration of the Wednesbury approach. In TK, Laws LJ (with whom Wilson LJ and Lord Neuberger MR agreed) in an ex tempore judgment held that this Court is bound by WM "unless it has been overturned or modified [by ZT]" (at paragraph 8). He added:

"In my judgment, the opinions in ZT do not provide binding authority for the proposition that the 'no realistic prospect of success' test in paragraph 353 is one that admits of only one answer, and nor does it provide authority for the proposition that anything other than the Wednesbury approach is apt for the court supervision of decisions taken under paragraph 353."

He repeated that view emphatically in a later passage (paragraph 10).

10

Although judgment in TK was given on 8 October 2009, the transcript was not approved until 19 February 2010. In the meantime, two other constitutions of this Court had come to the contrary conclusion, apparently unaware of the judgment in TK. In KH (Afghanistan) v Secretary of State for the Home Department [2009] EWCA Civ 1354, a Rule 353 case, Longmore LJ (with whom Aikens and Sedley LJJ agreed) said (at paragraph 19):

"It is now clear from ZT (Kosovo)… that the court must make up its own mind on the question whether there is a realistic prospect of success that an immigration judge, applying the rule of anxious scrutiny, might think that the applicant will be exposed to a breach of Article 3 or 8 if he is returned … So the question is not whether the Secretary of State was entitled to conclude that an appeal would be hopeless but whether, in the view of the court, there would be a realistic prospect of success before an [immigration judge]."

The judgment contains no mention of WM. I infer that it was thought to have been overruled by ZT.

11

The final piece of the jigsaw (which, on any view, has some ill-fitting pieces) is YH v Secretary of State for the Home Department [2010] EWCA Civ 116, which was heard on 27 January 2010 with judgment handed down on 25 February. The transcript in TK was approved between those dates. YH had been considered by the Secretary of State and in the Administrative Court on the basis that it was a Rule 353 case but in the Court of Appeal it was common ground that it was really a section 94 "clearly unfounded" case, in the light of BA (Nigeria) [2009] UKSC 7. Carnwath LJ (with whom Moore-Bick and Etherton LJJ agreed) appear to have treated the judicial review test for Rule 353 cases and section 94 cases as being the same on the basis that there is no practical difference between decisions being reviewed. Under the headings "In whose shoes?" and "The approach of the court on judicial review", he referred to WM, ZT and KH (Afghanistan) on the basis that they were all confronting the same issue. His conclusion (at paragraphs 18 and 21) was:

"… subsequent judgments following ZT (Kosovo) seem to have shifted the emphasis …

It seems therefore that on the threshold question the court is entitled to exercise its own judgment. However, it remains a process of judicial review, not a de novo hearing, and the issue must be judged on the material available to the Secretary of State."

12

He also made relevant observations (at paragraph 24) on the elusive meaning of "anxious scrutiny". The "subsequent judgments" referred to were his own first instance judgment in AS (Sri Lanka) [2009] EWHC 1763...

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