WM (DRC) and another v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Buxton,Lord Justice Jonathan Parker,Lord Justice Moore-Bick
Judgment Date09 November 2006
Neutral Citation[2006] EWCA Civ 1495
Docket NumberCase No: C4/2005/2782 C4/2005/2825 CO/7491/2005
CourtCourt of Appeal (Civil Division)
Date09 November 2006
Between:
Wm (Drc)
Appellant
and
The Secretary of State For The Home Department
Respondent
and Between
The Secretary of State For The Home Department
Appellant
and
Ar (Afghanistan)
Respondent

[2006] EWCA Civ 1495

Before:

Lord Justice Buxton

Lord Justice Jonathan Parker and

Lord Justice Moore-Bick

Case No: C4/2005/2782 C4/2005/2825

CO/5898/2004

CO/7491/2005

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

COLLINS J

DAVID LLOYD JONES QC

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Andrew Nicol QC and Miss Margaret Phelan instructed by Fisher Meredith for WM

Miss Shivani Jegarajah instructed by Hammersmith & Fulham Community Law Centre) for AR

Mr Parishil Patel instructed by The Solicitor to Her Majesty's Treasury for The Secretary of State

Lord Justice Buxton

Background

1

These two matters have been heard together, because they are thought to give rise to the same issues in relation to the proper role of the Secretary of State, and of the court in its supervisory capacity, in relation to failed asylum applicants who produce new material that is said to ground a "fresh claim". The Secretary of State's consideration of such material is governed by rule 353 of the Immigration Rules, which 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.

2

I set out, at this stage only in summary form, the two cases under consideration.

3

WM is a citizen of the Democratic Republic of the Congo who claims asylum by reason of feared persecution on political grounds. The nub of his claim is that in his employment as a laboratory technician at a hospital he was approached by a representative of the then Minister of the Interior and asked to carry out the assassination of various opposition politicians, while patients at the hospital, by injecting them with contaminated vaccines and blood transfusions. He refused, and thereafter feared that he would be sought out by the government. The adjudicator who heard his original claim found it inherently implausible, not least because WM was himself a member of the opposition party, and thus not likely to have been approached to perform this task. The adjudicator also thought that a summons said to have been issued against WM and recently obtained by him was of doubtful provenance; his explanation for how he had lost his travel documents was untrue; and he had given no valid explanation of why, as a French speaker, he had not applied for asylum in Belgium, through which he had passed on the way to the United Kingdom.

4

WM now produces further evidence. The Secretary of State refused to accept the new evidence as grounding a fresh claim, and an application for permission to apply for judicial review of that decision failed before Mr David Lloyd Jones QC (as he then was) , sitting as a Deputy Judge of the High Court. Neuberger LJ granted that permission, and ordered that the application for judicial review should proceed in this court.

5

5. AR is a native of Afghanistan. He claims asylum on the basis that his father was a high officer under the former Communist regime, who was detained and then killed when the Taliban took over, and he himself was threatened with death if he was located. That caused him to flee Afghanistan, and he fears death if he returns. The adjudicator who heard his appeal gave detailed reasons for her finding that AR's claims were entirely untrue. AR now produces a newspaper report from Afghanistan which, if genuine, may support his account of his and his family's difficulties. Collins J granted AR's application for judicial review of the Secretary of State's refusal to treat the new evidence as the basis for a fresh claim. The Secretary of State appeals to this court with the permission of Neuberger LJ.

The task of the Secretary of State

6

There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.

7

The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v SSHD [1987] AC 514 at p 531F.

The task of the court

8

There is no provision for appeal from a decision of the Secretary of State as to the existence of a fresh claim. The court has therefore been engaged only through the medium of judicial review. The content of such an application was first addressed by this court in R v SSHD ex p Onibiyo [1996] QB 768. The applicant in that case argued that whether or not a fresh claim for asylum had been made was a matter of precedent fact, on the same level as for instance a decision on whether an applicant was an illegal entrant, and thus to be decided, in case of dispute, by the court. The Secretary of State argued that the decision on whether a fresh claim had been made was for him, to be challenged only on grounds of irrationality. Sir Thomas Bingham MR, giving the judgment of the court, inclined tentatively and "with some misgivings" to the latter view, concluding therefore that the decisions of the Secretary of State were challengeable only on "Wednesbury" grounds.

9

Commentators for a time regarded that conclusion as still open for debate, but in truth no other answer could have been given to the question posited by counsel in Onibiyo. As the Secretary of State rightly submitted, his conclusion as to whether there was a fresh claim was not a fact, nor precedent to any other decision, but was the decision itself. The court could not take that decision out of the hands of the decision-maker. It can only do that when it is exercising an appellate role. With appeal excluded, the decision remains that of the Secretary of State, subject only to review and not appeal. And in any event, whatever the logic of it all, the issue to which Bingham MR gave only a tentative answer in Onibiyo arose for decision before this court in Cakabay v SSHD [1999] Imm AR 176. There is no escaping from the ratio of that case that, as encapsulated at the end of the judgment of Peter Gibson LJ at p195, the determination of the Secretary of State is only capable of being impugned on Wednesbury grounds.

10

That, however, is by no means the end of the matter. Although the issue was not pursued in detail, the court in Cakabay recognised, at p191, that in any asylum case anxious scrutiny must enter the equation: see §7 above. Whilst, therefore, the decision remains that of the Secretary of State, and the test is one of irrationality, a decision will be irrational if it is not taken on the basis of anxious scrutiny. Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters.

11

First, has the Secretary...

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