R v Secretary of State for the Home Department, ex parte Onibiyo
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,I,LORD JUSTICE ROCH,LORD JUSTICE SWINTON THOMAS |
| Judgment Date | 28 March 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0328-8 |
| Docket Number | QBCOF 96/0191/D |
| Court | Court of Appeal (Civil Division) |
| Date | 28 March 1996 |
In the matter of an application for judicial review
[1996] EWCA Civ J0328-8
(Mr Justice Latham)
Before: The Master of the Rolls Sir Thomas Bingham Lord Justice Roch Lord Justice Swinton Thomas
QBCOF 96/0191/D
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CROWN OFFICE LIST
MR N BLAKE QC with MR D SEDDON (Instructed by Messrs Fisher Meredith, Stockwell) appeared on behalf of the Appellant
MR N GARNHAM (Instructed by the Treasury Solicitor, London) appeared on behalf of the Respondent
Thursday, 28 March 1996
THE MASTER OF THE ROLLS
This appeal raises questions of general importance on the law and practice of asylum in the United Kingdom. If asylum has been claimed and refused, and the claimant has pursued his rights of appeal without success, may he make another claim for asylum, and if so in what circumstances and with what procedural consequences ?
The applicant (Mr Ademola Onibiyo) is a Nigerian born on 7 December 1975 and now aged 20. On 29 August 1987 when he was aged 11 he arrived in the United Kingdom with his mother and two younger siblings, having flown from Nigeria via Frankfurt. His father had entered the United Kingdom in 1964 and had acquired settled status. He had lost this status on returning to Nigeria between 1977 and 1983. But he had returned here in 1984 and had been granted leave to enter as a student for 12 months. Two of the applicant's older siblings had been born in this country and become United Kingdom citizens.
On his arrival in August 1987 the applicant was granted leave to enter as a visitor for 6 months until 29 February 1988. That period was extended for a further 6 months until 29 August 1988. He applied out of time for leave to remain but leave was refused on 26 November 1991.
On 24 June 1993 the applicant was arrested as an overstayer and served with notice of intention to deport. He exercised his right of appeal but at the hearing of the appeal it was conceded on his behalf that there was no ground for challenging the decision to deport. The appeal was accordingly dismissed, although the adjudicator recommended that the applicant be allowed to remain in the country until the end of that academic year. The applicant was, and has since (when at liberty) been, engaged in study at various colleges.
On 14 November 1994 an order was signed for the applicant to be deported and this order was served on him on 25 March 1995 when he was detained at Kennington Police Station. Removal directions were given for 27 March 1995.
On 26 March 1995 the applicant applied for asylum. In his then solicitors' letter of that date the application was put on the ground
"that he is of the Tribe of Yoruba, the same as their leader, Mr Abiola. This particular tribe have been objects of hatred by the Abacha Government and are being persecuted intensely and he fears that his life will be in danger if he is returned to Nigeria."
The applicant was interviewed : in answer to questions he referred in general terms to political activities of his father and made plain that his own claim for asylum was based on his father's political activities.
On 1 July 1995 the Secretary of State refused the applicant's claim for asylum. His reasons were set out in a long letter of that date. The Secretary of State did not find it credible that the applicant had a well-founded fear of returning to Nigeria because of his father's political activities and concluded that the claim for asylum had been concocted purely in an attempt to avoid removal from the United Kingdom. The applicant was served with a notice dated 11 July 1995 informing him that the Secretary of State had decided to treat his application as a request for the revocation of the deportation order previously made against him. He was told that the Secretary of State had refused his application for asylum and had accordingly refused to revoke the deportation order.
On 1 August 1995 the applicant exercised his right to appeal against this decision under section 8(3)(b) of the Asylum and Immigration Appeals Act 1993, to which reference is made below. He was released on bail. The applicant's appeal was heard on 18 September 1995, together with an appeal by his father (with his dependent wife and children), on whose behalf a claim for asylum had also been made. It was plain that the applicant could not succeed as a minor dependant of his father, since he was not under the age of 18. His claim for asylum therefore had to be judged on its own merits. It was conceded by counsel on his behalf that he could not establish a well-founded fear of persecution for a Convention reason. The special adjudicator observed :
"His application for asylum was made when it was quite clear from his interview that he could not hope to qualify for refugee status in his own right. It was quite rightly conceded straight away before me that he could not succeed. This, in my view, amounts in effect to an abuse of process and I conclude the application was only used as a means of delaying his departure and to seek a recommendation."
The father's claim for asylum was also held to be entirely without merit and his appeal also was dismissed. The applicant was again detained. Both he and his father were refused leave to appeal to the Immigration Appeal Tribunal on 4 October 1995.
The applicant's father was returned to Lagos under escort on 26 October 1995. It is said that he was expected to make contact with his family and colleagues in this country on his return to Nigeria but has not done so. On the evidence before the court, nothing has been seen or heard of the father since his arrival at the airport in Lagos.
On 27 October 1995 the Secretary of State wrote to the applicant's solicitors informing them of his intention to deport the applicant. The solicitors made representations against this course, and by letter of 30 November 1995 gave notice of a fresh application for political asylum on behalf of the applicant. The grounds of this application were elaborated in a letter of 4 December 1995, in which it was stated that the application was a new one and based on factors and circumstances that had not previously been considered. The letter said that the applicant had a well-founded fear of being persecuted in Nigeria "for reasons of membership of a particular social group and political opinion". He was said to be a supporter of and associated with the opposition movement in Nigeria. Enclosed with the letter or sent at the same time were a statement of the applicant, a letter from the Nigerian Democratic Movement (UK), an extract from a report of the Parliamentary Human Rights Group on the situation in Nigeria, an October 1995 report of the Refugee Council on the Home Office and Nigeria entitled "Beyond Belief" (a critique of the Home Office's assessment of the human rights situation in Nigeria), and a report on Nigeria of a mission established pursuant to the Commonwealth Human Rights Initiative. Reference was made to recent events in Nigeria and in particular to the execution of Mr Ken Saro-Wiwa and eight other Ogoni people.
By letters written on 5 and 6 December 1995 the applicant's solicitors urged the Home Office to defer the removal of the applicant, to give proper consideration to his claim for political asylum and to allow time for them to gather evidence. They asked that the request for political asylum should be read as including a request to revoke the deportation order in force against the applicant. The Home Office replied in a letter of 6 December 1995. This letter acknowledged the applicant's solicitors' representations and enclosures, some of which the Home Office had already received and considered. The letter said:
"The Secretary of State has given careful consideration to the issues you have raised but is of the view that your representations of 4 December do not constitute a fresh claim for asylum. Although, it is now claimed that Mr Onibiyo is a supporter of and is associated with the opposition in Nigeria and that his political convictions would cause him difficulty it is still the situation of Mr Onibiyo's father and the political climate in Nigeria that remains the basis of his application. Accordingly your letter of 4 December 1995 has been treated as further information to Mr Onibiyo's original asylum claim."
The Home Office (it was said) had no evidence that the applicant's father was detained and no reason to believe that ordinary supporters of the pro-democracy movement or their relatives were likely to be subject to persecution. The Secretary of State had carefully considered the applicant's request for revocation of the deportation order against him but did not consider that there had been any material change in circumstances since the previous refusal decision sufficient to justify revocation and he was not prepared to delay further the deportation of the applicant. The applicant's solicitors took issue with this letter by a letter written on the same date, 6 December 1995, and enclosed notice of appeal to a special adjudicator under section 8(3)(b) of the 1993 Act. The Home Office maintained its position. In a letter of 7 December 1995 an official said :
"I am aware that you have treated my letter of 6 December as a refusal of asylum and have accordingly submitted notice of appeal to the Special Adjudicator. However, as explained in my letter of 6 December your representations of 4 December were not considered as a fresh asylum application but as further information to Mr Onibiyo's...
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