R v Secretary of State for the Home Department ex parte Ravichandran (No 2)
| Jurisdiction | England & Wales |
| Judgment Date | 19 April 1996 |
| Date | 19 April 1996 |
| Court | Queen's Bench Division (Administrative Court) |
Queen's Bench Division
Dyson J
I Lewis for the applicants
R Jay for the respondent
Cases referred to in the judgment:
R v Secretary of State for the Home Department ex parte ZamirELR [1980] AC 930: [197980] Imm AR. 203.
Khawaja v Secretary of State for the Home DepartmentELR[1984] AC 74: [1982] Imm AR 139.
Bugdaycay and ors v Secretary of State for the Home Department [1987] Imm AR 250.
R v Immigration Appeal Tribunal and an Immigration Appeal Adjudicator ex parte Secretary of State for the Home DepartmentWLR [1990] 1 WLR 1126: [1990] Imm AR 166.
R v Secretary of State for the Home Department ex parte Manvinder Singh [1996] Imm AR 41.
Ademola Onibiyo v Secretary of State for the Home Department [1996] Imm AR 370.
Nitsingham (unreported) (HX/72344/94).
Janakan (unreported) (HX/73731/95).
Political asylum fresh application Secretary of State concluded no fresh application made whether that decision gave rise to an appeal to the appellate authorities whether it was for the Secretary of State to decide whether a fresh claim had been made whether the Secretary of State had applied the correct test in the instant cases the basis on which the Secretary of State's decision might be challenged. Asylum and Immigration Appeals Act 1993 s. 8, sch. 2 para. 2: HC 395 paras. 327, 328, 332, 346.
Exceptional leave recommendation by special adjudicator Secretary of State decided not to follow the recommendation whether decision Wednesbury unreasonable.
The applicants for judicial review were citizens of Sri Lanka. They had been refused asylum by the Secretary of State: their appeals had been dismissed: on the basis that conditions in Sri Lanka had deteriorated, their representatives made further applications for asylum. The Secretary of State concluded that the submissions by the representatives did not constitute fresh applications, giving rise to further rights of appeal.
Before the court it was argued that any refusal by the Secretary of State would give rise to an appeal under the 1993 Act. The court considered that issue, the question by whom it was to be decided whether a fresh application had been made and, following the Court of Appeal guidance, in Onibiyo, whether in the instant cases the proper test had been applied.
In the case of Sandralingham, the special adjudicator, in dismissing his appeal, recommended that the appellant be granted exceptional leave to remain. The Secretary of State refused to follow that recommendation. Counsel argued that refusal was Wednesbury unreasonable.
Held
1. A decision by the Secretary of State that further representations did not constitute a fresh application for asylum, did not give rise to a right of appeal to the appellate authorities under section 8 of the 1993 Act.
2. It was for the Secretary of State to decide whether a fresh application had been made. That decision could only be challenged as being Wednesbury unreasonable: the court would not enquire into the precedent facts.
3. In the instant cases the Secretary of State had applied the wrong test, following the Court of Appeal's conclusions in Onibiyo, in determining whether fresh applications had been made.
4. The refusal of the Secretary of State to follow the recommendation of the special adjudicator had not been Wednesbury unreasonable.
Dyson J: Iyathurai Sandralingam was born on 20 November 1969 in the Jaffna region of Sri Lanka. In 1985, he was arrested and detained by the Sri Lankan security forces. He was held for sixteen days, beaten and interrogated. In mid-1987 he was detained again by the Sri Lankan security forces, and forced to walk through minefields. He was imprisoned between June and August 1987, during which time he was beaten, hanged upside down and interrogated. In August 1989, he was detained by the Indian peace-keeping force for nine days. Once again he was beaten and tortured. Upon release, he went into hiding until March 1990, when the Indian peace-keeping force left his home area, which then came under the control of the Liberation Tigers of Tamil Eelam (LTTE). In about May 1993, he decided to travel to Colombo, because the Sri Lankan army had moved north. He arrived in Colombo on 23 June 1993. He left Sri Lanka and on 14 July 1993 he arrived in the United Kingdom and claimed asylum. His claim was refused by letter dated 20 August 1993, and he was refused leave to enter on 25 August 1993.
Senathirajah Ravichandran was born on 22 July 1969 in the Jaffna region. In 1989, he was detained by the Indian peace-keeping force and held in a camp for 22 days, during which time he was repeatedly beaten and interrogated. In 1991, he was detained by the Sri Lankan security forces, and held in a camp for one-and-a-half months. He was repeatedly interrogated and beaten whilst bound. On three occasions, he was suspended from a ceiling by his feet. Early in 1993, he moved to Colombo. In April 1993, he was detained in a round-up of Tamils in Colombo, and held for two days. Six days after his release, he was detained in another round-up, and held for three days. In May 1993, he was detained in a third round-up. This time he was held for 15 days, and was beaten and interrogated. On his release, he went into hiding, and arrangements were made for him to leave Sri Lanka. He arrived in the United Kingdom on 2 July 1993, and claimed asylum. His claim was refused by letter dated 25 August 1993, and leave to enter was refused on 28 August 1993.
Both applicants had a history of limited involvement with the LTTE, for example by helping to dig bunkers to protect the local population from government air raids.
They both appealed against the refusal of leave to enter. On 17 August 1994, their appeals were dismissed by written determination. The special adjudicator decided that the LTTE was a terrorist organisation, and that those who supported it were not entitled to Convention protection, alternatively that they could in any event be returned to Colombo, which was an area where they would not be justified in claiming that they had a reasonable fear of persecution. The special adjudicator made a recommendation that Mr Sandralingam be granted exceptional leave to remain until there was some improvement in his health and condition.
On 19 January 1995, their appeals were dismissed by the Immigration Appeal Tribunal. On 11 October 1995, the Court of Appeal dismissed their appeals from the decisions of the Immigration Appeal Tribunal. On 12 February 1996, petitions for leave to appeal to the House of Lords were dismissed. On 13 February 1996, the Secretary of State gave removal directions to take effect on 15 February 1996.
On 14 February 1996, the solicitors acting on behalf of the applicants wrote identical letters to the Secretary of State, and formally made fresh applications for leave to enter the United Kingdom as refugees in the light of recent developments in Sri Lanka. The letter referred to the fact that the cessation of hostilities in Sri Lanka had broken down on 19 April 1995, that there had been renewed fighting between the Sri Lankan forces and the LTTE in the north and east of the island, and that Tamil youths were now being persecuted in Colombo. Enclosed with the letters were various documents, including the determinations by Judge David Pearl in Janakan and Nitsingham.
On 15 February 1996, the Secretary of State rejected these applications as not constituting fresh claims for asylum. On 23 February 1996, the Secretary of State wrote to the applicants' solicitors, commenting in detail on the information provided in the letter of 14 February and the enclosed documents. It will be necessary to examine parts of this letter in some detail. However, the Secretary of State maintained his view that the applicants had not made a fresh claim for asylum. He also asserted that there had not been any deterioration in the general situation in Sri Lanka, including the Colombo area.
On 1 March, leave to apply for judicial review was granted by Buxton J.
The statutory framework
The Asylum and Immigration Appeals Act 1993 provides, so far as material, as follows:
1. Interpretation.
In this Act
Claim for asylum means a claim made by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom
8. Appeals to special adjudicator.
(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention.
(2) A person who has limited leave under the 1971 Act to enter or remain in the United Kingdom may appeal to a special adjudicator against any variation of, or refusal to vary, the leave on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be required to leave the United Kingdom after the time limited by the leave.
(3) Where the Secretary of State
(a) has decided to make a deportation order against a person by virtue of section 3(5) of the 1971 Act, or
(b) has refused to revoke a deportation order made against a person by virtue of section 3(5) or (6) of that Act,
the person may appeal to a special adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention; but a person may not bring an appeal under both paragraph (a) and paragraph (b) above.
(4) Where directions are given as mentioned in section 16(l)(a) or (b) of the 1971 Act for a person's removal from...
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