R v Secretary of State for The Home Department, ex parte Coulibuly
| Jurisdiction | England & Wales |
| Judgment Date | 30 June 1998 |
| Date | 30 June 1998 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Peter Gibson, Schiemann, Potter LJJ
A Nicol QC and M Henderson for the appellant
R Plender QC for the respondent
Cases referred to in the judgments:
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 DepartmentELR [1987] AC 514: [1987] Imm AR 250.
Leech v Deputy Governor of Parkhurst PrisonELRUNK [1988] AC 533: [1988] 1 All ER 385.
Secretary of State for the Home Department v Ken'aan [1990] Imm AR 544.
R v Secretary of State for the Home Department ex parte Manvinder Singh [1996] Imm AR 41.
R v Secretary of State for the Home Department ex parte OnibiyoELR [1996] QB 768: [1996] Imm AR 370.
R v Secretary of State for the Home Department ex parte Ravichandran (No 2) [1996] Imm AR 418.
R v Secretary of State for the Home Department ex parte Boybeyi (unreported, QBD, 24 January 1997).
R v Secretary of State for the Home Department ex parte Ward [1997] Imm AR 236.
R v Secretary of State for the Home Department ex parte Kabala [1997] Imm AR 517.
R v Secretary of State for the Home Department ex parte Watuzola (unreported, QBD, 17 December 1997).
R v Immigration Appellate Authority ex parte Secretary of State for the Home Department (Cakabay No 3) [1998] Imm AR 52.
R v Secretary of State for the Home Department ex parte Mahmut Cakabay (Cakabay No 2) [1998] Imm AR 177.
Pui Yu Wong (unreported) (12602).
Asylum — appeals dismissed — further information submitted by representatives — Secretary of State concluded no fresh claim made for asylum — whether appellate authority had jurisdiction to determine whether a fresh claim had been made. Asylum and Immigration Appeals Act 1993 ss. 6, 8, sch. 2 para. 2: HC 395 paras. 328, 330, 331, 334, 336.
Asylum — judicial review of Secretary of State's decision that further representations did not constitute a fresh claim — whether court would determine the application on Wednesbury principles or enquire into precedent facts.
Appeals from Lightman J. After the appellant's appeals against the refusal of asylum by the Secretary of State had been dismissed, his representatives had submitted further evidence. The Secretary of State had concluded that the additional evidence did not constitute a fresh claim.
His representatives then purported to send a notice of appeal against that decision to the Immigration Appellate Authority. They also sought leave to move for judicial review of the decision by the Secretary of State to remove the appellant from the United Kingdom. The Secretary of State then sought an order of prohibition to prevent the appellate authority entertaining the appeal, maintaining that it was outside the jurisdiction of the appellate authority to determine whether or not the Secretary of State's decision that there had been no fresh claim was correct.
Both issues came before Lightman J who granted the Secretary of State a declaration that the appellate authorities had no jurisdiction in the matter and reviewing the decision on Wednesbury principles concluded that the Secretary of State's decision could not be held to be unreasonable.
On appeal to the Court of Appeal counsel argued again that the appellate authorities had jurisdiction to review the Secretary of State's decision on appeal and, if he were wrong on that, in judicial review proceedings the courts should review such a decision on the basis of precedent facts.
Held:
1. On a true reading of the provisions of the 1993 Act no right of appeal to the appellate authorities was given to challenge a decision of the Secretary of State that further evidence did not in a particular case constitute a fresh application for asylum.
2. When such a decision was challenged before the courts on an application for judicial review, the courts would review the decision on Wednesbury principles and would not be concerned with the precedent facts.
Schiemann LJ: This appeal raises in the context of immigration law some important questions as to the legal regime governing repeated applications by an applicant for the same relief. Where a person claims asylum, has his claim rejected by the Secretary of State and has exhausted the appellate process, but then makes a second claim for asylum which the Secretary of State does not grant, what further remedies are available to the applicant? That is the underlying issue before the court.
The first claim for asylum
The appellant Mr Cakabay arrived in this country on 26 June 1996. He needed permission to enter (Immigration Act 1971 section 1). He claimed asylum and asked for permission to enter on that basis. Section 4 of the 1971 Act provides that the power to give or refuse leave to enter shall be exercised by immigration officers. However, immigration rule 328 provides that all asylum applications will be considered by the Secretary of State. He did so and refused the application on 30 August 1996. Immigration rule 331 provides that in such circumstances the immigration officer will then resume his examination in order to determine whether or not to grant to the person seeking leave to enter leave under any other provision of the immigration rules. The asylum application having been refused, the immigration officer, on 11 September 1996, refused leave to enter on two grounds:
‘1. You have applied for asylum in the United Kingdom. The Secretary of State has decided to refuse your application for the reasons set out in the attached notice.
2. You have failed to produce to the immigration officer a valid national passport or other document satisfactorily establishing your identity or nationality.’
Section 13 of the 1971 Act enables a person who is refused leave to enter to appeal to an adjudicator. However, the Asylum and Immigration Appeals Act 1993 created a special regime in relation to claims for asylum. A claim for asylum means:
‘a claim made by a person 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’ (Section 1 of the 1993 Act).
The right to appeal to an adjudicator under section 13 of the 1971 Act was excluded by schedule 2 paragraph 1 of the 1993 Act and there was substituted a right to appeal to a special adjudicator under section 8. The presently crucial provision is in section 8(1):
‘A person who is refused leave to enter…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.’
Mr Cakabay appealed to a special adjudicator. His appeal was dismissed. The Immigration Appeal Tribunal refused leave to appeal and leave to move for judicial review of that decision was also refused. In the present proceedings Mr Cakabay cannot and does not raise any complaint as to the disposal of his first claim for asylum.
The second claim for asylum
Three days after leave to move for judicial review in relation to the first claim was refused, Mr Cakabay's solicitors made further representations, once more claiming asylum on his behalf. Faced with such further representations, the task of the Secretary of State is set out in immigration rule 346.
‘Where an asylum applicant has previously been refused asylum…the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:
(1) is not significant; or
(2) is not credible; or
(3) was available to the applicant at the time when the previous application was refused or when any appeal was determined.’
Paragraph 334 reads:
‘An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(1) He is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and
(2) He is a refugee, as defined by the Convention or Protocol; and
(3) Refusing his application would result in his being required to go…in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.’
The Secretary of State decided not to treat the representations as a fresh claim to asylum. It is that decision [‘the categorisation decision’) which gave rise to two sets of judicial review proceedings before Lightman J (‘Cakabay 2’ and ‘Cakabay 3’) against whose decisions Mr Cakabay appeals.
For the purpose of exposition, although ultimately of no significance, it is helpful to explain what those two proceedings were. Cakabay 3 arose out of an attempt by Mr Cakabay to appeal the categorisation decision. It was an application by the Secretary of State for an order preventing the immigration appellate authority from entertaining the appeal against the categorisation decision. It raised the first question (‘the appeal question’) before the court: was the judge right to hold that a categorisation decision could not be challenged by way of appeal.
Cakabay 2 was an application by Mr Cakabay for an order quashing the categorisation decision. It raises the second question (‘the precedent fact question’) before the court: was the judge right to hold that a categorisation...
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