R (ZA & SM) v Secretary of State for the Home Department and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Sullivan |
| Judgment Date | 30 July 2010 |
| Neutral Citation | [2010] EWCA Civ 926 |
| Docket Number | Case No: C4/2010/1147 & 1005 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2010 |
[2010] EWCA Civ 926
Sir Anthony May President of The Queen's Bench Division & Mr Justice Foskett
Before: Master of The Rolls
Lord Justice Laws
and
Lord Justice Sullivan
Case No: C4/2010/1147 & 1005
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Christopher Jacobs and Nwamaka Nnamani (instructed by Howe & Co) for the First Appellant
Manjit Gill QC and Danny Bazini (instructed by Trott & Gentry) for the Second Appellant
Robin Tam QC and David Blundell (instructed by Treasury Solicitors) for the Respondent
Hearing date: 14 July 2010
Lord Neuberger MR:
These appeals are brought on behalf of ZA and SM from the decision of the Administrative Court (the President of the Queen's Bench Division and Foskett J). The appeals raise the issue whether, as the Administrative Court decided, the Secretary of State is entitled to refrain from making an appealable immigration decision in response to an asylum claim or a human rights claim which he reasonably concludes is merely a repetition of an earlier claim whose rejection has been unsuccessfully challenged in a concluded appeal.
Introductory
The facts giving rise to these appeals
I can take the facts from the judgment of the Administrative Court – [2010] EWHC 718 (Admin), paragraphs 2–5:
“2. SM is a national of the Democratic Republic of the Congo, who arrived in the United Kingdom on a false passport on 7 th May 2007 and applied for asylum. His application was refused on 4 th June 2007 and on 5 th June 2007 he was given formal notice of Refusal of Leave to Enter with a decision to make removal directions. His appeal was dismissed by an Immigration Judge on 28 th August 2007. Reconsideration of this decision was refused on 28 th November 2007. On 24 th July 2008, his former representatives made further submissions. In early 2008 he had entered into a relationship with a woman who was a refugee from the Democratic Republic of the Congo and with whom he underwent a traditional wedding ceremony on 31 st January 2009. The further submissions were refused on 30 th April 2009. He was detained on 20 th May 2009. Further submissions based on Article 8 of the European Convention on Human Rights were made on 26 th May 2009, and the present judicial review proceedings were begun on 27 th May 2009. On the following day an injunction was obtained restraining his removal. A further letter dealing with and rejecting the Article 8 submission was served on 22 nd June 2009. Blake J granted permission on 8 th July 2009. He indicated that it was arguable on the basis of the Court of Appeal decision in BA (Nigeria) [2009] EWCA Civ 119; [2009] QB 686, that SM had an in-country appeal, although there was force in the Secretary of State's submission that the Article 8 claim did not outweigh the need for immigration control.
3. ZA is a Nigerian national, who arrived illegally in the United Kingdom in April 2002. He sought asylum on 28 th May 2003 after he had been arrested for working illegally. The Secretary of State rejected his claim on 5 th June 2003, on which date the Secretary of State gave him written notice in compliance with the Immigration (Notices) Regulations 2003 of a decision to remove him as an illegal entrant or other immigration offender. On 13 th August 2003, his appeal was dismissed by an adjudicator. At some stage he absconded and he was recorded as an absconder on 22 nd June 2005.
4. On 20 th September 2008, ZA was arrested for suspected immigration offences and possession of drugs, although no charges were ultimately brought against him. On 23 rd September 2008, his representatives made further submissions based on Article 8 of the European Convention on Human Rights and claimed that he fell within the Secretary of State's Legacy Programme. The Secretary of State rejected these further submissions in a letter dated 24 th September 2009. Removal directions were set for 17 th October 2009, but these were cancelled when he began judicial review proceedings on 14 th October 2009. On 11 th December 2009, Dobbs J refused permission finding that the claim was hopeless. Further removal directions were set for 21 st December 2009, but ZA renewed his application for permission orally and an injunction was granted preventing his removal. We grant his renewed application for permission to bring these proceedings.
5. Each claimant contends that [he has] a right of appeal against the Secretary of State's rejection of their Article 8 claims. The Secretary of State contends that he has made no immigration decision which attracts a right of appeal and that he is not obliged to make one. He relies on the original decisions to remove the claimants.”
Summary of the issue between the parties
Immigration and asylum have been the subject of a large and increasing, almost bewildering, volume of legislation (both statutory and regulatory), and of litigation (both in tribunals and courts) over the past forty years. One of the problems that has had to be addressed is that of renewed claims, that is claims for asylum, leave to remain and the like, made by people who have already had their claims rejected. On the one hand, it is only fair that the opportunity to make such renewed claims should be available to those who have good reasons for making them – normally because of a significant and unforeseen change in circumstances since a previous claim was made and rejected. On the other hand, it must be right to shut out renewed purported or actual claims which either raise no new grounds or are hopeless.
In these two cases, it is the respondent Secretary of State's contention that the purported renewed claims by SM on 24 July 2008 and on 26 May 2009 were in reality mere repetitions of the claim which ultimately failed on appeal on 28 November 2007, and that she was therefore entitled to reject them by virtue of rule 353 of the Immigration Rules (“rule 353”), without actually making a decision on them. The Secretary of State's case as against ZA is that, on the same ground, she was entitled to reject, and did not need to decide, the purported renewed claim of 23 September 2008 as it relied on substantially the same facts as the claim which ultimately failed on 13 August 2003. If that is right, the only way of challenging those rejections would be by way of application for judicial review.
The contention of the appellants, SM and ZA, on the other hand, is that, irrespective of the weakness or repetitious nature of the renewed purported claims, the Secretary of State had to make a decision on them, and that her duties with regard to them were governed by the provisions of Part 5 of the Nationality Immigration and Asylum Act 2002 (“the 2002 Act”) whose effect was either impliedly to repeal rule 353 or to render it of no further application.
These rival submissions obviously require one carefully to consider the terms of rule 353 and of certain of the sections in part 5 of the 2002 Act. However, they also require consideration of the decision of the House of Lords in ZT (Kosovo) v Home Secretary [2009] UKHL 6; [2009] 1 WLR 348, and of the Supreme Court in BA (Nigeria) v Home Secretary [2009] UKSC 7; [2010] 1 AC 444, this latter decision providing the main plank for the appellants’ argument.
The legislative background
Rule 353 of the Immigration Rules
In R v Secretary of State ex p Onibiyo [1996] QB 768, in relation to an appeal under the now repealed Asylum and Immigration Appeals Act 1993, the Secretary of State contended that only one claim for asylum could be made by a person. The Court of Appeal rejected that contention, holding that a new or “fresh” claim could be mounted. Sir Thomas Bingham MR, giving the only reasoned judgment of this court, said this at [1996] QB 768, 783B:
“It was accepted for the applicant that a fresh ‘claim for asylum’ could not be made by advancing an obviously untenable claim or by repeating, even with some elaboration or addition, a claim already made, or by relying on evidence available to the applicant but not advanced at the time of an earlier claim. There had, counsel acknowledged, to be a significant change from the claim as previously presented, such as might reasonably lead a special adjudicator to take a different view. If the fresh claim depended on new evidence, then it had to satisfy tests, analogous to Ladd v Marshall [1954] 1 WLR 1489, of previous unavailability, significance and credibility.”
Sir Thomas agreed with that proposition, which was based on the reasoning of Stuart-Smith LJ in the earlier case of R v Secretary of State ex p Manvinder Singh [1996] Imm AR 41.
This proposition was (in September 1996) subsequently enshrined in the Immigration Rules (“the Rules”), initially in rule 346, but now, since October 2004, in rule 353, which is in these terms:
“When a human rights or an asylum claim has been refused or withdrawn or treated as withdrawn under … these Rules 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 which 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...
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