R v Secretary of State for the Home Department ex parte Syed Mohammed Kazmi
| Jurisdiction | England & Wales |
| Judgment Date | 21 September 1994 |
| Date | 21 September 1994 |
| Court | Queen's Bench Division (Administrative Court) |
Queen's Bench Division
Dyson J
N Blake QC and V Kothari for the applicant
R Jay for the respondent
Cases referred to in the judgment:
Jamaldeen Ashraf v Immigration Appeal Tribunal [1989] Imm AR 234.
R v Immigration Appeal Tribunal ex parte Secretary of State for the Home DepartmentWLR [1990] 1 WLR 1126: [1990] Imm AR 492.
Rubeen Ramiah v Secretary of State for the Home Department [1992] Imm AR 263.
R v Secretary of State for the Home Department ex parte Syed Majid Kazmi (Laws J, of 27 September 1993) [1994] Imm AR 94.
Lemba Kalunga v Secretary of State for the Home Department [1994] Imm AR 585.
Political asylum application made after refusal of leave to enter as spouse application refused Secretary of State declined to instruct immigration officer to issue second refusal notice applicant thus secured no right of appeal whether lawful for Secretary of State so to act whether if so, he exercised his discretion unreasonably. Immigration Act 1971 ss. 3, 4(1), 13(1), 13(3): Asylum and Immigration Appeals Act 1993 (Commencement and Transitional Provisions) Order 1993 (SI 1993: 1655) para. 3(a); HC 251 para. 75.
Political asylum application refused further evidence submitted with additional representations representatives requested those be treated as second fresh application for asylum Secretary of State declined so to categorise them whether Secretary of State acted lawfully whether court entitled to enquire into precedent facts whether the ratio of a Court of Appeal decision in a renewed application for leave to move for judicial review was binding on inferior courts. Asylum and Immigration Appeals Act 1993 ss. 8(4), 8(6), sch.2 para. 2: HC 251 paras. 75B, 180L.
The applicant was a citizen of Pakistan. He had been refused leave to enter as a spouse. He claimed asylum. In due course that application was refused. The Secretary of State declined to instruct the immigration officer to issue a second notice of refusal of leave to enter, thus not providing the applicant with a right of appeal against the rejection of his application.
The applicant sought leave to move for judicial review of the Secretary of State's refusal: that was refused by Laws J who observed that there was additional relevant evidence before the Secretary of State, of which the court could not take notice: the Secretary of State however undertook to review the case in the light of that evidence. The applicant's representatives then asked the Secretary of State to treat that fresh evidence and additional representations as constituting a second, fresh application for asylum. That the Secretary of State declined to do.
Before the court counsel argued that the third sub-paragraph of HC 251 (as amended) on which the Secretary of State relied for his refusal to ensure a second notice of refusal of leave to enter was issued following the rejections of the claim for asylum, was ultra vires, in the light of ex parte Secretary of State for the Home Department. Counsel further argued that the decision of the Court of Appeal in Kalunga was not binding on the court and that it should look at the precedent facts to determine whether the Secretary of State had been correct to refuse to categorise the additional evidence and representations as a second application for asylum.
Held
1. It cannot have been the intention of Parliament that an applicant for asylum should be denied the right of appeal simply because he had previously made an application for leave to enter on another ground.
2. It followed that the Secretary of State had erred in law in refusing to direct the immigration officer to issue a second notice of refusal of leave to enter following the refusal of the application for asylum.
3. He could not rely on the third sub-paragraph of HC 75 which could not override the provisions of the 1971 Act.
4. However, had it been a matter of the Secretary of State's discretion whether to instruct an immigration officer to issue a second notice then on Wednesbury principles that decision would not have been open to challenge.
5. The Secretary of State had been entitled to decline to consider the additional evidence and representations as constituting a fresh, second application for asylum. Following Kalunga it was for the Secretary of State to characterise an application: his decision could only be challenged on Wednesbury principles and it was not for the court to enquire into the precedent facts.
6. Kalunga was binding on the court. The ratio of a decision of the Court of Appeal on a renewed application to apply for judicial review was binding on inferior courts.
Dyson J: The applicant is a Pakistani citizen. He first arrived in the United Kingdom with leave to enter as a visitor for six months on 30 October 1991. Subsequently he married. He returned to Pakistan, and on 28 April 1992 sought to re-enter as a spouse. On 20 July 1992 he was refused leave to enter as a spouse, whereupon he immediately applied for asylum. The basis of his asylum claim was (a) his conversion from Islam to Christianity, and (b) his membership of the Pakistan Moslem League. On 22 June 1993, the Secretary of State refused the asylum claim. On 2 July 1993, the applicant lodged an application for leave to apply for judicial review of this decision. Meanwhile, the applicant continued to make representations to the Secretary of State in support of his claim to asylum. In particular, on 19 July 1993 he submitted an affidavit sworn by a Dr Hinchcliffe in which the opinion was expressed that a convert from Islam to Christianity would attract the provisions of section 295C of the Pakistani Penal Code, and that this would result in the imposition of the death sentence.
In a letter dated 29 July 1993, the Secretary of State stated that after considering this further material, he saw no reason to reverse his decision to refuse asylum. Three days earlier, the relevant provisions of the Asylum and Immigration Appeals Act 1993 (the 1993 Act ) including section 8 had come into force, as had the new asylum rules HC 725. Although the Secretary of State had maintained his refusal of asylum, the matters raised by Dr Hinchcliffe were of sufficient concern to him to cause him to take the somewhat unusual step of commissioning an independent expert opinion himself. Such an opinion was obtained from Professor Pearl on 1 September 1993. Professor Pearl advised that apostasy from Islam to Christianity did not of itself fall within the terms of section 295C of the Penal Code. An apostate might, however, be prosecuted under that section if in addition to his apostasy he did something that was regarded as defiling the name of Mohammed. On 13 September 1993 the Secretary of State wrote to the applicant again saying that in the light of that opinion and all the other evidence in the case, he was reinforced in his view expressed in his letter of 29 July 1993 that the applicant did not have a well-founded fear of persecution in Pakistan.
On 24 September 1993, the applicant obtained an expert opinion from Mr Lau in response to that of Professor Pearl. Although it had not been considered by the Secretary of State, this was included in the material placed before Laws J on 27 September when he heard inter partes the application for leave to apply for judicial review. In his opinion, Mr Lau gave details of a case where a convert had been prosecuted under section 295C. Laws J refused leave. Towards the end of his judgment, Laws J said:
As I have said, it is essential to have in mind that this application has to be considered on the material before the Secretary of State. One may take the view that what is now disclosed in Mr Lau's opinion is a substantial cause for gravely doubting the conclusions reached by Professor Pearl as to the ambit of section 295C, or at least the use which may be made of it by the Pakistani authorities.
The court is glad to have Mr Jay's assurance on behalf of the Home Office that the Secretary of State will consider (and it goes without saying that means that he must consider with an open mind), the new material, and in particular that report from Mr Lau.
On 1 October 1993, the applicant lodged a renewed application for leave to the Court of Appeal.
During the following months the applicant submitted further material to the Secretary of State in support of his claim to asylum. The Secretary of State reconsidered the claim taking account of all the information on which he took his original decision as well as all the material subsequently placed before him.
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