R (OMAR) v Secretary of State for the Home Department

This is a case in which there has been a grant of permission to apply for judicial review. The claimant is, or claims to be, a citizen of Somalia. She claimed asylum. Her claim for asylum was comprehensively rejected to the extent that the Adjudicator rejected the credibility of the claimant, and indeed was not satisfied that she was of the ethnic origin she claimed to be. Since that date, she has submitted what is represented to be a fresh claim. The fresh claim has not been the subject of a decision by the Secretary of State. She has also sought permission to work.

The primary issue now between the parties is whether she has lawfully been refused permission to work by the Home Secretary, relying on paragraph 360 of the Immigration Rules. The question has been raised as to whether that paragraph and the policy under which it is strictly applied is consistent with the European Directive 2003/9/EC of 27th January 2003 laying down minimum standards for the reception of asylum seekers.

So far as the existing permission is concerned, it was given on the basis of the delay on the part of the Home Secretary in addressing and determining the fresh claim. It is accepted by both sides, and I recognise the helpfulness of both sides in this, that that permission was granted under a misapprehension as to the law which has now comprehensively been set out in a decision of Collins J in FH and Others, a decision which both sides accept is correct. As applicable to this case, it is realistically recognised on behalf of the claimant that her claim as originally formulated is doomed to failure. Both sides consent in those circumstances to the grant of permission by Bean J being set aside. Having regard to the consent in the particular circumstances of this case, it seems to me, notwithstanding the provisions of Part 54, this is a case in which a grant of permission can be set aside and I do so.

That leaves the substantive question between the parties, and that is whether Immigration Rule 360 is compliant with the Directive and whether the application of Rule 360 in this particular case is compliant with the Directive.

I start from two premises. The first premise is that where a question is raised as to the correct interpretation of European legislation (and I include Directive legislation), this court should only determine the issue if it is quite clear as to the proper interpretation of the legislation in question. If there is a realistic doubt as to its effect, the appropriate course in a case such as this would be to grant permission and to make a reference to the European Court. That is my first starting point.

The second is this. It is the experience in this court that there are many, many applications for asylum in cases where there has been a comprehensive, cogent and lawful rejection of an asylum application on bases which are alleged to constitute a fresh claim and which do not in fact constitute a fresh claim when critically examined, either by the Home Secretary or bought the court. A fresh claim must put forward material which creates a realistic prospect of success before an Immigration Judge, having regard to the decision which has already been taken. I do not say thsta this is such a case, but it is the case that the decision already taken in this case, as I have already indicated, was adverse to the claimant.

In this case it is submitted that the making of what purports to be a fresh claim does constitute a claimant an asylum seeker for the purpose of the Council Directive, until that claim has been determined, either in the sense that the Home Secretary decides that it is not in fact a fresh claim (assuming there is not a judicial review of that decision) or if he decides it is a fresh claim, in which case he either allows it or, if he rejects it, must grant a right of in-country appeal.

In my judgment, in interpreting the Council Directive I should bear in mind that background fact. Of course, when someone applies for asylum at first instance (that is to say where a claim has not previously been considered), that person is an asylum seeker but, in my judgment, it would defeat any proper system of dealing with asylum applications if the mere fact that some wholly unverified alleged fresh claim were put forward resulted in someone being an asylum seeker for the purpose of the Directive and the Immigration Rules. Different considerations arise if, on proper examination, the fresh claim is indeed a fresh claim, but I would be loath to interpret either the English legislation or the European legislation as conferring rights on someone whose asylum claim has been rejected and is therefore relying on some supplemental and frequently illusory grounds in order to obtain a different decision from that which was originally made.

It is more convenient in this case to begin by reference to the Directive itself. Article 2 contains a definition of an application for asylum, which does not call for consideration. But “applicant” or “asylum seeker” is defined to mean a “third country national and stateless person who has made an application for asylum in respect of which a final decision has not yet been taken”. That cannot be said of the claimant. She is a person who has made an application for asylum in respect of which a final decision has indeed been taken. It seems to me that therefore she is not an...