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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Laws,Lord Justice Wilson
Judgment Date08 October 2009
Neutral Citation[2009] EWCA Civ 1550
Docket NumberCase No: C4/2008/2792
Date08 October 2009

[2009] EWCA Civ 1550

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

QUEEN'S BENCH DIVISION

(Mr Justice Blair)

Before: Lord Neuberger (The Master of the Rolls)

Lord Justice Laws

and

Lord Justice Wilson

Case No: C4/2008/2792

Between
R (TK)
Appellant
and
Secretary of State for the Home Department
Respondent

Ms Shivani Jegarajah (instructed by K Ravi Solicitors) appeared on behalf of the Appellant.

Mr Steven Kovats (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.

Lord Justice Laws

Lord Justice Laws:

1

This is an appeal with permission granted by Sir Richard Buxton on 23 April 2009 against a judgment of Blair J given on 12 November 2008. By that judgment he dismissed the appellant's application for judicial review of decisions of the Secretary of State which rejected further representations made on the appellant's behalf as not amounting to a fresh asylum claim. The case involves a question as to the correct approach of the court to a challenge directed to a decision by the Secretary of State that no fresh claim has been made. Granting permission, Sir Richard Buxton said this:

“On the substance of the matter, the applicant has drawn attention to the observations of Sedley LJ in RT (Sri Lanka) [that should be TR] to the effect that the court has to decide for itself, as a matter of precedent fact, whether or not there was a fresh claim. That was not the view of the judge, who applied the approach of this court in WM (Congo) [2006] EWCA Civ [1495] and Cakebay [1999] Imm AR 176 at 195, that the court has still to apply the Wednesbury test, albeit illuminated by the rule of anxious scrutiny. That is not, as was suggested in TR, an attitude of 'deference', but simply the application of orthodox principles of administrative law. However, there now apparently being differing views between different constitutions of the court as to the proper test to apply to this very important question, I grant permission to enable the issue to be properly reconsidered.”

2

Where a failed asylum seeker or person claiming to enter the United Kingdom on human rights grounds makes further representations to the Secretary of State, the question whether those representations are treated as a fresh claim is important because if they are the claimant will enjoy appeal rights against an adverse decision. The criteria by which further representations fall to be treated as a fresh claim or not are given by paragraph 353 of the current Immigration Rules, which has now been considered in many cases. That paragraph provides:

“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas.

353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.

This paragraph does not apply to submissions made overseas.”

3

The appellant is a Sri Lankan Tamil. He arrived in the United Kingdom aged 17 on 30 June 2001 and immediately claimed asylum which was refused. On 7 August 2002 his appeal was allowed by the adjudicator. On 10 April 2003 the Immigration Appeal Tribunal allowed the Secretary of State's appeal essentially on the basis that the security position in Sri Lanka had much improved. The appellant was no longer at risk and there was no separate Article 3 claim on medical grounds. The appellant's application for permission to appeal to this court was refused on 8 May 2003. On 11 July 2003 the appellant advanced further representations on the footing that he was making a fresh claim. There was then a gross delay, rightly described by Sir Richard Buxton granting permission as deplorable. At length on 1 June 2007 the Secretary of State determined that the July 2003 representations did not amount to a fresh claim within paragraph 353 of the Rules. The judicial review papers in the case were lodged very shortly afterwards on 5 June 2007. In their further representations of July 2003 the appellant's solicitors had submitted (with some chapter and verse in support) that the security situation in Sri Lanka, notwithstanding its earlier improvement, had deteriorated rapidly in the few weeks just gone. They also relied on fresh medical evidence relating to their client. On 25 February 2008 the Secretary of State wrote a further decision letter. It was accepted that the situation in Sri Lanka had deteriorated but not that the appellant would be at risk of persecution, and so the merits of the new representations were rejected and it was again concluded that there was no fresh claim within paragraph 353.

4

The decision letter of February 2008 expressly took account of the tribunal decision in LP (Sri Lanka) [2007] UKAIT 00076 which had addressed the deteriorating situation in Sri Lanka. Following the late service of amended judicial review grounds the letter of 25 February 2008 became the focus of the judicial review challenge, as Blair J was to acknowledge at paragraph five of his judgment. At paragraph 12 of the judgment the learned judge below stated that at paragraph 21 of the letter of 25 February 2008 the Secretary of State “had asked herself the correct question”. This is what the Secretary of State had said:

“Anxious scrutiny has been given to the decision in LP and the effect it has on your client's case, but it has been determined that the findings by the Tribunal in LP in addition to the most recent country information, when taken together with material previously considered in your client's case, would not create a realistic prospect of success before an immigration judge.”

5

Blair J also cited the Secretary of State's own conclusions on 25 February 2008 as to the merits of the appellant's claim in light of the up to date material. These are essentially to be found in paragraphs 11 and 19. Paragraph 11:

“Given the above findings of the Adjudicator and the subsequent decision by the Immigration Appeal Tribunal, it is considered that your client will be of little interest to the authorities on his return to Sri Lanka. We believe that your client's position in the LTTE was of insufficient standing for him to now elicit the interest of the authorities. It is further considered that your client has been away from Sri Lanka for over 6 years and therefore it is unlikely that he would be of any interest to the authorities on his return. This would be the case even if there remained a record of your client's detention.”

Paragraph 19:

“It is accepted that since 2003 the situation in Sri Lanka has deteriorated, with the main incidents of insecurity reported in northern and eastern districts. Having considered the objective country information, including the latest Country of Origin information reports, it is considered that your client would not be at risk of persecution. Your client is not of a sufficiently high profile to merit any adverse attention from the authorities upon return....

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