R v. Secretary of State for the Home Department, Ex parte Ssenyonjo

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	26 January 1994
Citation / Document Symbol	[1994] Imm AR 310
Cite as	R v. Secretary of State for the Home Department, Ex parte Ssenyonjo, [1994] Imm AR 310, United Kingdom: High Court (England and Wales), 26 January 1994, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b65118.html [accessed 30 May 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte SSENYONJO

Queen's Bench Division

[1994] Imm AR 310

Hearing Date: 26 January 1994

26 January 1994

Index Terms:

Judicial review -- political asylum -- refusal by Secretary of State -- appeals dismissed -- subsequent application for leave to move for judicial review of Secretary of State's original decision -- the court's approach.Removal directions -- Secretary of State advised applicant that unless judicial review proceedings were commenced within five days, removal directions would be implemented -- whether Secretary of State's approach unlawful.

Held:

The applicant for leave to move for judicial review was a citizen of Uganda who had been refused asylum by the Secretary of State. His appeal had been dismissed by a special adjudicator: he was refused leave to appeal to the Tribunal. Belatedly he sought to impugn, on grounds of unreasonableness, the original decision of the Secretary of State: he did not seek review of any proceedings before the appellate authorities.

Following the refusal of leave to appeal to the Tribunal, the Home Office had fixed a date for the implementation of removal directions. When it was learnt that judicial review proceedings were contemplated, the Home Office advised the appellant that if they were not commenced within five days, the removal directions would go ahead. Counsel submitted that the Home Office decision was unlawful.

Held

1. Only very rarely, after the appeals procedures had been exhausted, would leave be granted to review the original underlying decision by the Secretary of State. This was not a case in which it was appropriate to do so, the application in any event being late.

2. The question of the Home Office ultimatum was academic, judicial review proceedings having been commenced, but it was not arguable in any event that the Home Office's decision was unlawful.

Counsel:

R Duddridge for the applicant; A MacNab for the respondent

PANEL: Dyson J

Judgment One:

DYSON J: This is an application for leave to move to quash a decision of the Secretary of State made on 27 July 1993, not to grant refugee status to the applicant, and, secondly, to quash what has been called by the applicant a "five day ultimatum", issued on 10 or 11 January 1994, by which the Secretary of State gave the applicant five working days in which to lodge an application for leave to move for judicial review, directions for removal being set at that time for 19 January 1994.

The refusal of the applicant's application for asylum on 27 July 1993 was contained in a letter, which set out in some detail the reasons why the respondent found the applicant to be an incredible witness. The applicant appealed that decision to a special adjudicator. That appeal was refused by a decision promulgated on 12 November 1993. The special adjudicator heard evidence. He too, for reasons which are set out in considerable detail, found the applicant an incredible witness. Finally, the applicant sought leave to appeal to the Immigration Appeal Tribunal. That application for leave to appeal was dismissed on 19 November 1993.

It is important to note that no challenge is sought to be made of the decision of the special adjudicator or that of the Immigration Appeal Tribunal.

On behalf of the applicant, Mr Duddridge challenges the decision of the Secretary of State of 27 July 1993 on grounds of Wednesbury unreasonableness. In particular, it is submitted that three important matters of fact were ones which no reasonable person could reasonably have made. I am wholly unpersuaded by that submission. In any event, it seems to me that those findings of fact were only some of the findings which were relied upon by the Secretary of State to reach his decision. On that ground alone I would have dismissed this application in relation to the decision of 27 July 1993.

The matter does not stop there, however. I take into account also the fact that this applicant, who has exhausted his rights of appeal, does not challenge the adverse decisions made by the special adjudicator and the Immigration Appeal Tribunal, but seeks now to challenge the original underlying decision. In my judgment, cases in which it would be right to give leave to challenge the original decision, where the appellate process has been exhausted and unsuccessfully, must be rare indeed. I see nothing to justify exercising my discretion in favour of the applicant. I also take account of the delay that has occurred. The decision which it is sought to quash was made six months ago. No good reason has been advanced for the delay in challenging that decision, certainly since the unfavourable outcome of the decision of the Appeal Tribunal. This last point is a subsidiary point and does not form the main basis of my decision.

I turn to the other decision sought to be quashed. That decision is now, in my view, of historical interest only. The Secretary of State imposed a time-limit on the applicant for commencing leave proceedings as a condition of not exercising his powers of removal. That has had its desired effect. The applicant has brought judicial review proceedings. Accordingly, I see no point in giving leave for the court to consider whether that decision was one which it was open to the Secretary of State to make. Mr MacNab has made a number of submissions as to why, in any event, such a decision as was made on 10 January 1994 was one which the Secretary of State was empowered to make. If the point had not been an academic point, I would nevertheless have refused leave to the applicant because I would not have been satisfied that it was arguable that the decision to issue the so-called five day ultimatum was unlawful.

For these reasons this application is refused.

DISPOSITION:

Application refused

SOLICITORS:

Kumars, London W5; Treasury Solicitor