R (YH) v Secretary of State for the Home Department

Lord Justice Ward:

This is an application for permission to appeal the refusal by Wyn Williams J to allow the applicant to move for judicial review. In a nutshell the position is this: the applicant came to this country in about 2000, having left that part of Iraq which is controlled by the Kurdish autonomy authorities, the KAZ, the Kurdish autonomous zone in Iraq. He claimed asylum, fearing ill-treatment at the hands of the authorities there because of his unlawful trading in antiquities. That claim for asylum was dismissed in November 2003 and his application for permission to appeal it was refused. It took a long time before, in February 2006, he was either deported or left the country voluntarily, and it does not seem to me to matter which it was. Two years then passed, and he came back to this country again and immediately on his arrival, on 22 January 2008, claimed asylum. The authorities interviewing him completed a “Repeat Asylum Application Form”, which asks a few but limited questions. Asked why he left the United Kingdom, he explained that:

“[Q] Why have you decided to return to the UK now?

[A] Because of the same problems I had before have started again and I use to live in UK.

[Q] Is your reasoning for claiming asylum now the same as the reason you came here and made your previous claim for asylum?

[A] Yes.

….

[Q ] Has anything happened since you were last in the United Kingdom which might be relevant to your asylum claim?

[A] When I got back the problems started again. I was involved in the illegal sale of a mummy and I was arrested and tortured because of it.”

As I understand it, the allegation of torture was a fresh allegation not made in the asylum claim of 2000; it was new and it is in my judgment highly arguable, to put it at its lowest, that this amounted to a completely fresh claim for asylum which had to be judged on its merits by the Secretary of State, and if he refused the asylum claim there was an automatic right of appeal. In fact the decision letter of 24 January asserts that:

“In considering your case, account has been taken of the fact by, your own admission, your representations are based on the same reasons as those given in your previous asylum claim, which was refused on 29 January 2003. No evidence has been produced in support of your claim to have been arrested and tortured on your return to Iraq, for what, in any event, would be a criminal matter …

Taking all the above into consideration your representations are rejected and the decision to refuse your earlier claim is maintained.”

Arguably the Secretary of State failed to recognise that this was a fresh claim, that there was evidence in the form of his assertion that he had been tortured and that it deserved consideration on that basis alone. Instead the Secretary of State seems to have treated this as an application made under paragraph 353 of the Immigration Rules, that is to say as putting forward a fresh claim on significantly different material from that which was previously considered. It is arguable in my view that paragraph 353 does not arise here until at least the fresh asylum claim has properly been considered.

It is therefore arguable that judicial review of these decisions should be allowed and I would grant the application.

I agree.

Order: Application granted

Hearing date: Wednesday 27th January, 2010

Carnwath LJ:

Introduction

This appeal raises once again the problem of how the Secretary of State or the courts should respond to “repeat” claims for asylum or human rights protection: that is, claims by those who, having been through the decision-making system unsuccessfully, come back to the Secretary of State with further submissions raising the same or similar allegations, either while still in the country, or (as in this case) having left and returned. In such cases, as Lord Hope said ( BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7):

“There is obviously a balance to be struck. The immigration appeals system must not be burdened with worthless repeat claims. On the other hand, procedures that are put in place to address this problem must respect the United Kingdom's international obligations.” (para 32)

Until recently, the guiding authority in this court was WM (Democratic Republic of Congo) v Secretary of State [2006] EWCA Civ 1495. But since then, there has been much activity in this court and above. For a review of the cases preceding BA(Nigeria), I refer to my own judgment (sitting as a judge of the Administrative Court) in R(AS(Sri Lanka)) v Secretary of State [2009] EWHC 1763 Admin.

The cases have been concerned with two apparently similar tests. The first is that used for a number of years to determine whether new submissions give rise to a “fresh claim”, under rule 353 of the Immigration Rules. This was based on principles established by case-law (see R v Secretary of State for the Home Department, ex p Onibiyo [1996] QB 768). Rule 353 provides:

“When a human rights or asylum claim has been refused … and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

The Nationality, Immigration and Asylum Act 2002 introduced a more elaborate scheme. It was these provisions, and their relationship to rule 353, that were examined by the Supreme Court in BA(Nigeria). It is unnecessary to consider them in detail here. We are directly concerned with section 94, which enables the Secretary of State to issue “certificates” in certain categories of case, the effect of which is to exclude the right of appeal under section 82. In the present case, we are concerned with the power of the Secretary of State to certify a claim as “clearly unfounded” (s 94(2)). Other certifying powers relate, for example, to a case where the new application relies on a matter which could have been raised in an appeal against a previous decision, and where there is no satisfactory reason for that not having been done (s 96).

The present case was considered by the Secretary of State, and by the judge, on the footing that rule 353 applied. It is now common ground, following BA(Nigeria), that this was wrong. However, the Secretary of State seeks to rely on section 94(2) to achieve the same result. In support we have a witness statement from Mr Ponsford, a Senior Executive Officer with the UK Border Agency, sworn in June 2009, following the Court of Appeal decision in BA(Nigeria). By reference to the terms of the refusal letter, he concludes that “the outcome would have been the same if the caseworker had had to consider the claim as clearly unfounded”. Miss Ward, for the claimant, does not argue that, if the reasoning was sufficient to support a certificate under section 94, the Secretary of State is debarred by failure to certify at an earlier time. The first issue in this appeal, therefore, is whether, as applied to the facts of this case, there is any material difference between the two tests.

It is to be noted that in BA(Nigeria) such a comparison did not fall to be made, because the only issue was whether the case fell within rule 353. The Secretary of State had not sought to argue in the alternative that a certificate under section 94(2) could have been issued. The reasons for this concession owed nothing to the substantive merits, but seem to have arisen from the way the Secretary of State chose to argue the case. As Lord Brown explained:

“… it is common ground between the parties that the present cases are not certifiable under either of these sections (ss 92 or 94). That, however, as I understand it, is solely because, so far as section 94 is concerned, it applies only ‘where the appellant has made an asylum claim or a human rights claim (or both)’ (subsection 1). By the same token that, on the Secretary of State's...