R v Special Adjudicator, ex parte Secretary of State for the Home Department R v Secretary of State for the Home Department, ex parte Cakabay
| Jurisdiction | England & Wales |
| Judgment Date | 22 October 1997 |
| Date | 22 October 1997 |
| Court | Queen's Bench Division |
Queen's Bench Division
Lightman J
R Plender QC and Miss E Grey for the Secretary of State
A Nicol QC and M Henderson for Mahmut Cakabay
Cases referred to in the judgment:
R v Fulham, Hammersmith and Kensington Rent Tribunal ex parte ZerekELRUNK [1951] 2 KB 1: [1951] 1 All ER 482.
Williams & Glyn's Bank v Astro Dinamico Comp. Nav SAWLRUNK [1984] 1 WLR 438: [1984] 1 All ER 760.
Adolphus Lokko v Secretary of State for the Home Department [1990] Imm AR 111.
Secretary of State for the Home Department v Said Ken'aan [1990] Imm AR 544.
R v Secretary of State for the Home Department ex parte Arfi Abdi and ors [1993] Imm AR 35.
R v Secretary of State for the Home Department ex parte Manvinder Singh [1996] Imm AR 41.
Manvinder Singh v Secretary of State for the Home Department (unreported, CA, 9 December 1995).
Ademola Onibiyo v Secretary of State for the Home DepartmentUNK [1996] Imm AR 370: [1996] 2 All ER 901.
R v Secretary of State for the Home Department ex parte Senathirajah Ravichandran (No. 2) [1996] Imm AR 418.
R v Secretary of State for the Home Department ex parte Coskun Boybeyi (unreported, QBD, 24 January 1997).
Secretary of State for the Home Department v Coskun Boybeyi [1997] Imm AR 491.
Pai Yu Wong (unreported) (12602).
Asylum appeals dismissed fresh information submitted by representatives Secretary of State refused to consider representations as constituting a fresh claim purported notice of appeal against that refusal submitted to appellate authorities whether special adjudicator had jurisdiction to determine whether a fresh claim had been made whether a decision exclusively for the Secretary of State only to be challenged on judicial review. Asylum and Immigration Appeals Act 1993 ss. 2, 6, 8, sch. 2 paras. 2, 9; HC 395 paras. 328, 346.
Application by the Secretary of State to prohibit the immigration appellate authority from entertaining an application by Mahmut Cakabay to appeal against the decision of the Secretary of State to refuse to consider new information submitted by his representatives as a fresh application for asylum.
Following the dismissal of appeals by Mahmut Cakabay against the refusal by the Secretary of State to grant him asylum, his representative submitted fresh information relating to his claim. The Secretary of State did not consider that the new information would increase the likelihood of the claim succeeding: he refused to accept that it formed a fresh claim. The representatives then sought to appeal to the immigration appellate authorities against that decision by serving a notice of appeal to a special adjudicator. They also instituted proceedings to move for judicial review of his refusal. The Secretary of State sought judicial review to secure an order prohibiting the appellate authority from entertaining the application.
The application for leave to move for judicial review by Mahmut Cakabay was adjourned and the court confined itself to determining the jurisdiction of the appellate authority.
Held:
1. It was for the Secretary of State alone to decide whether there had been a fresh application for asylum.
2. That decision was not a decision that fell within the ambit of section 8 of the 1993 Act.
3. It followed that there could be no appeal to a special adjudicator against that decision which accordingly if it were challenged, could only be challenged by way of judicial review.
Lightman J: I have before me two applications for judicial review, the first by Mr Cakabay* and the second by the Secretary of State for the Home Department. They both revolve around a single issue of law of some importance in the field of immigration law relating to political asylum. An applicant may seek leave to enter or remain in the United Kingdom on the ground of political asylum. If this application fails, before he leaves the United Kingdom he may seek to make another application on the same ground. Only if this second application is an application based on significant credible material not available at the time of the first application and enjoys a realistic prospect of success will it constitute a fresh application and as such be entertained by the Secretary of State for the Home Department. The question raised is whether the Secretary of State is sole judge whether the second is a fresh application (subject only to the supervision of the court in judicial review proceedings) or whether an appeal lies against his decision (as against other decisions on applications for leave to enter on asylum grounds) to the immigration appellate authority, namely the special adjudicator and (with leave) from the special adjudicator to the Immigration Appeal Tribunal.
The facts
The issue before me is one of law and the parties are agreed that the facts are practically irrelevant. I shall however briefly summarise them.
Mr Cakabay, a Turkish national, arrived at Ramsgate on 26 June 1996 and applied for leave to enter the United Kingdom on asylum grounds. His application was refused on 11 September 1996. His appeal to the special adjudicator against that refusal was dismissed on 27 March 1997. In considering the appeal the special adjudicator took account of Mr Cakabay's claim that his brother Nurettin had been imprisoned in Turkey in March 1995 for aiding the PKK guerrillas. He did not consider that claim sufficiently relevant to Mr Cakabay's own case to make any finding of fact in relation to it. His general conclusion was as follows:
I did not find the Appellant to be remotely credible. I was satisfied beyond all reasonable doubt that the reasons given by the Appellant for his journey from Turkey to the United Kingdom bore no relationship to the truth. I was satisfied that the Appellant had sought to mislead the authorities at his initial interview, at his subsequent interview in August 1996 and in giving evidence to me.
Mr Cakabay's application for leave to appeal to the Tribunal was refused on 21 April 1997. His application for leave to apply for judicial review of the decision of the Tribunal to refuse leave was refused by Laws J on 19 June 1997.
On 13 and 16 June 1997 his solicitors again wrote to apply for asylum on behalf of our client on the basis of new information that Mr Cakabay's brother is imprisoned in Turkey for his political activities. On 14 July 1997 the Secretary of State responded that the documents supplied with the letters of 13 and 16 June 1997 made no difference to the likelihood of your claim succeeding:
Your client does not claim to have been involved in any political activities with his brother Nurrettin. Moreover from 19901993 your client lived and worked in Saudi Arabia and by his own admission was unaware of his brother's activities and situation in Turkey. The Secretary of State does not therefore consider that his brother's alleged activities have any significance or bearing on your client's application for asylum.
In the same letter the Secretary of State doubted the authenticity of certain of the materials presented on 13 and 16 June 1997. In summary, the Secretary of State determined that Mr Cakabay's representations did not constitute a fresh application for asylum and declined to entertain it as such. In response to further communications from Mr Cakabay's solicitors the Secretary of State wrote to them on 28 July and 1 August 1997 stating that he adhered to his decision.
On 4 August 1997 Mr Cakabay's solicitors sent to the Secretary of State a purported notice of appeal to a special adjudicator against the Secretary of State's decisions dated 28 July and 1 August to refuse to recognise me as a refugee. On receiving a response from the Secretary of State that those letters did not constitute appealable decisions, Mr Cakabay's solicitors on 11 August 1997 served the purported notice of appeal upon the appellate authority and applied for leave to move for judicial review of the decision of the Secretary of Stateto remove the applicant despite his having appealed against the refusal of his fresh...
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