R v Secretary of State for the Home Department ex parte Manvinder Singh
| Jurisdiction | England & Wales |
| Judgment Date | 18 July 1995 |
| Date | 18 July 1995 |
| Court | Queen's Bench Division |
Queen's Bench Division
Carnwath J
J Gillespie for the applicant
S Kovats for the respondent
Cases referred to in the judgment:
R v Immigration Appeal Tribunal ex parte Secretary of State for the Home DepartmentWLR [1990] WLR 1126: [1990] Imm AR 166.
R v Tower Hamlets London Borough Council ex parte Ferdous BegumELRELRUNK [1993] QB 447: [1993] AC 509: [1993] 2 All ER 65.
Kalunga v Secretary of State for the Home Department [1994] Imm AR 585.
R v Secretary of State for the Home Department ex parte Kazmi [1995] Imm AR 73.
Political asylum refusal by Secretary of State removal directions issued appeals dismissed request for reconsideration of application in light of fresh evidence Secretary of State maintained original decision fresh removal directions whether application for reconsideration was a fresh application giving rise to a fresh right of appeal the test for identifying a fresh application whether that to be determined by the Secretary of State or by the appellate authorities. Immigration Act 1971 ss. 16, 21, sch. 2 para 28(2): Asylum and Immigration Appeals Act 1993 ss. 2, 6, 8, sch. 2 paras. 2, 9: Immigration Appeals (Procedure) Rules 1984 r. 35: Immigration Appeals (Procedure) Rules 1993 r. 5: UNHCR Handbook on procedures and criteria for determining refugee status (1979) para 65.
The appellant was a citizen of India. He had been refused political asylum by the Secretary of State and removal directions given. He appealed. His appeal was dismissed. While awaiting removal from the United Kingdom, representations were made on his behalf for the reconsideration of his case in the light of fresh evidence. The Secretary of State reconsidered the case but adhered to his original decision and new removal directions were given. The Secretary of State decided that the representations made did not constitute a fresh application for asylum giving rise to a fresh right of appeal.
Before the court it was argued that those representations constituted a fresh application. The court considered whether it was for the Secretary of State or the appellate authorities to determine whether a fresh application had been made, and the test to be applied.
Held
1. Whether the Secretary of State or the appellate authorities should finally determine whether a new application had been made, had not been fully argued in Kalunga.
2. On a review of the statutory provisions, it would seem that it was for the appellate authorities to make that final decision.
3. For a fresh application to have been made there would have to be a change in the fundamental basis of the applicant's claim.
4. In the instant case the fresh evidence did not constitute such a change in the fundamental basis of the claim.
Carnwath J: The applicant is an Indian national who arrived in the United Kingdom in September 1993. He was arrested by the police in November 1993 and he applied for political asylum. He had left India some 18 months before and had spent five months in Russia, one month in Germay and one year in Belgium before coming to this country.
In his interview notes he is recorded as claiming that his cousin Balvinder Singh had been killed by Sikh terrorists because he was army personnel, the terrorists asked him to join them and he refused. His own claim to asylum was put thus: my cousin who was killed looked exactly like me and the terrorists think he is still alive when he sees me. The terrorists invited me to join, if I refuse they will kill me. He also said The terrorists demanded money from my maternal auntie by saying your son is still alive, either pay or hand me your son. They came to our house enquiring about me, they killed my grandfather in mid 1991. He also referred to two short periods of detention by the police for reasons which he did not know.
The Secretary of State refused his claim for asylum on 19 January 1994. In the decision letter, reference was made to doubts as to the applicant's credibility, to the fact that he had not been involved in political activities himself and that his detention by the police had not involved any ill treatment, and to the measures adopted by the Indian government to deal with violence and terrorism in the Punjab. It concluded:
Having considered all the available evidence, the Secretary of State did not consider Sikhs in India to be a persecuted group who have a claim to refugee status under the 1951 United Nations Convention by virtue of their religion or ethnic origins. Furthermore, the Secretary of State could not be satisfied from the information available to him that if you were to return to India you would face any further threats from any terrorist groups and that if you did you could not seek the protection of the authorities in India.
The applicant appealed under the Asylum and Immigration Appeals Act 1993. The special adjudicator dismissed his appeal on 12 March 1994. The adjudicator did not find the appellant a credible witness. This was partly because of discrepancies in his account of what had happened since he left India and other false details of his background. He did not believe the alleged risk of him being mistaken for his cousin by the terrorists bearing in mind that it was those terrorists that had killed his cousin. He also considered that there was no credible evidence that the authorities are not willing or able to afford the appellant protection. He dismissed the suggestion of fears of persecution by the police. An application for leave to appeal to the Immigration Appeal Tribunal was refused by the Chairman on 6 April 1994.
Following this decision the applicant remained in detention while arrangements were put in hand to return him to India. These seem to have been delayed, apparently partly by problems of identifying the applicant at his stated home address in India. The detail of this has not been gone into in evidence before me. In any event the applicant was still in this country in December, when it appears that arrangements had been made for him to leave the country on 15 December.
On 13 December his solicitors wrote to the Immigration Department referring to further correspondence relevant to his case. They said:
It would seem that our client's fear of the militants is borne out by our client's father being killed, would you therefore please reconsider this matter.
They submitted various documents, but on the following day the Immigration Department drew to their attention the fact that these documents related to the death of the applicant's grandfather, not his father. That had already been taken into account. The solicitors were given the opportunity to submit further representations following a meeting with their client on 20 December. Following that meeting, on 22 December, they wrote correcting the earlier information. They produced evidence that their client's father had been injured by a bullet wound caused by being caught up in a militant attack on 7 November 1994. They enclosed various letters from India and a newspaper article which had not yet been translated. One of the letters was dated 14 November, on notepaper headed Minister Public Works (Public Health), Information & Public Relations, Punjab, Chandigarh. It reads:
I feel very sad on listening that anti-national elements attacked you on 7th November 1994 and you are admitted to the hospital. I thanked God who has saved your life. Please be conscious in future so that this may not happen in future. Any type of security help if you need, please write me.
There is also a letter from a doctor, certifying that Mr Baag Singh had been admitted to the hospital with a gunshot injury, dated 7 November and been operated upon, and had stayed in hospital for 10 days. On 9 January the solicitors supplied an affidavit from Baag Singh referring to the injury and saying:
I have received so many threats from the terrorists because my son Manvinder Singh, they wanted him to help them and in spite of help he faced the anti-national elements and helped the police to get arrested so many terrorists and on the telephone they threat me to kill all the family otherwise to produce Manvinder Singh before them.
There were delays in providing a full translation of the newspaper article, but this was eventually sent on 17 February. The newspaper in question was the Public Saharaa, a Hindi language daily newspaper published in Amritsar. The article reads:
Some armed militants attacked yesterday evening at about 7pm. The junior engineer at Punjab Electricity Board, Sardar Baag Singh, those militants were arriving in Maruti car of white colour, two bullets hit Baag Singh. Militants ran away from sudden presence of police control. It is said that the condition of Baag Singh is very serious. Sardar Salwent Singh, the father of Baag Singh, was also shot dead by militants in September 1992, Manvinder Singh, the son of Baag Singh is the cause of all this episode; who refused to be a part of militants about 3 or 4 years ago and faced them without fear of his or his family's life and got many militants arrested with the help of police. Militants have attacked his house a few times before in search of Manvinder Singh.
On 21 February 1995, Mr Watt of the Asylum and Special Cases Division wrote a detailed response. He referred to the Secretary of State's awareness of the problems of terrorism in the Punjab but also his view that in consequence of tough security action taken against the militants the problems were decreasing. He referred to the Advocate's letter dated 25 February 1994 which refers to the considerable improvement in the law and order situation although the letter then attempts to qualify that statement. (That letter is not in the papers.) He concluded:
Nevertheless the Secretary of State is satisfied that in view of...
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