R v. Secretary of State for the Home Department, Ex parte Onibiyo
| Publisher | United Kingdom: Court of Appeal (England and Wales) |
| Author | Court of Appeal (Civil Division) |
| Publication Date | 22 May 1996 |
| Citation / Document Symbol | [1996] 2 All ER 901, [1996] 2 WLR 490, [1996] Imm AR 370 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte Onibiyo, [1996] 2 All ER 901, [1996] 2 WLR 490, [1996] Imm AR 370, United Kingdom: Court of Appeal (England and Wales), 22 May 1996, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6db14.html [accessed 22 October 2022] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
R v Secretary of State for the Home Department, ex parte Onibiyo
COURT OF APPEAL, CIVIL DIVISION
[1996] 2 All ER 901, [1996] 2 WLR 490
Hearing Date: 4, 5, 28 March 1996
28 March 1996
Index Terms:
Immigration -- Leave to enter -- Refugee -- Asylum -- Fear of persecution held by overstayer -- Home Department ordering overstayer's deportation -- Overstayer applying for asylum on basis of father's political activities and claiming risk of persecution -- Home Secretary refusing application -- Applicant giving notice of fresh application on basis of new material -- Whether new material constituting a fresh 'claim for asylum' -- Asylum and Immigration Appeals Act 1993, s 1.
Held:
On 26 March 1995 the applicant, an overstayer from Nigeria, made a claim for asylum under s 1 of the Asylum and Immigration Appeals Act 1993 as a refugee within the 1951 Convention relating to the Status of Refugees. His claim for asylum, which was based on the political activities of his father and the situation in Nigeria, was refused and his subsequent appeal under s 8(3)(b) of the 1993 Act was dismissed. Following his father's deportation to Nigeria, the applicant purported to make a fresh application for asylum on the basis of factors and circumstances that had not previously been considered, namely that he had a well-founded fear of persecution in Nigeria for reasons of membership of a particular social group and political opinion, being a supporter of the opposition movement there. In addition, the applicant submitted evidence that his father had disappeared since returning to Nigeria. The Secretary of State considered that the applicant's representations did not constitute a fresh claim for asylum and that his father's situation and the political climate in Nigeria remained the basis of his application. He accordingly treated the applicant's representations as relevant to the original claim, but declined to alter his decision refusing asylum and indicated that, since he had made no fresh decision, the applicant had no available avenue of appeal open to him. The applicant applied for judicial review of the Secretary of State's decisions, but the judge dismissed his application, holding that no more than one 'claim for asylum' within the meaning of s 1 of the 1993 Act could be made during a single uninterrupted stay in the United Kingdom. The applicant appealed. Held -- A person could during a single uninterrupted stay in the United Kingdom make more than one 'claim for asylum' for the purposes of s 1 of the 1993 Act. The test of what constituted a fresh 'claim for asylum' was whether, comparing the fresh claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim was sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim, despite the unfavourable conclusion reached on the earlier claim. The question whether such a claim had been made was to be determined by the Secretary of State (in the first instance) and the immigration appellate authorities, whose determinations were susceptible to challenge only on Wednesbury principles; the court therefore had no power to review as an objective precedent fact the issue whether a fresh 'claim for asylum' had been made or not. Since the applicant had accepted before the judge that he could not impugn the Secretary of State's decision as irrational, it followed that his appeal would be dismissed. Bugdaycay v Secretary of State for the Home Dept [1987] 1 All ER 940 applied. Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765 considered.Notes:
For political asylum and refugees, see 4(2) Halsbury's Laws (4th edn reissue) para 82. For asylum for refugees and stateless persons under the international conventions, see 18 Halsbury's Laws (4th edn) paras 1717-1722. For the Asylum and Immigration Appeals Act 1993, ss 1, 8, see 31 Halsbury's Statutes (4th edn) (1994 reissue) 215, 224.Cases referred to in the Judgment:
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, CA. Bugdaycay v Secretary of State for the Home Dept [1987] 1 All ER 940, [1987] AC 514, [1987] 2 WLR 606, HL. Kalunga v Secretary of State for the Home Dept [1994] Imm AR 585, CA. Khawaja v Secretary of State for the Home Dept [1983] 1 All ER 765, [1984] AC 74, [1983] 2 WLR 321, HL. Ladd v Marshall [1954] 3 All ER 745, [1954] 1 WLR 1489, CA. M v Secretary of State for the Home Dept [1996] 1 All ER 870, [1996] 1 WLR 507, CA. R v Secretary of State for the Home Dept, ex p Kazmi [1995] Imm AR 73. Sandralingham v Secretary of State for the Home Dept, Rajandrakumar v Immigration Appeal Tribunal [1996] Imm AR 97, CA. Singh v Secretary of State for the Home Dept [1995] CA Transcript 1618; affg (18 July 1995, unreported), QBD.Cases cited in the Judgment:
Garlick v Oldham Metropolitan BC [1993] 2 All ER 65, [1993] AC 509, HL; rvsg sub nom R v Tower Hamlets London BC, ex p Begum [1993] 1 All ER 447, [1993] QB 447, CA. Khaboka v Secretary of State for the Home Dept [1993] Imm AR 484, CA. R v Immigration Appeal Tribunal, ex p Enwia [1983] 2 All ER 1045, [1984] 1 WLR 117, CA. R v Immigration Appeal Tribunal, ex p Secretary of State for the Home Dept [1990] 3 All ER 652, [1990] 1 WLR 1126, CA; affg [1990] Imm AR 166, DC. R v Secretary of State for the Home Dept, ex p Fahmi [1994] Imm AR 447. R v Secretary of State for the Home Dept, ex p Sivakumaran (UN High Comr for Refugees intervening) [1988] 1 All ER 193, [1988] AC 958, HL. R v Secretary of State for the Home Dept, ex p Stefan [1995] Imm AR 410. Secretary of State for the Home Dept v Savchenkov [1996] Imm AR 28, CA. Tarling, Re [1979] 1 All ER 981, [1979] 1 WLR 1417, DC.Introduction:
Appeal By notice dated 20 February 1996 the applicant, Ademola Onibiyo, appealed with leave from the decision of Latham J made on 19 January 1996 dismissing his application for judicial review of three decisions of the Secretary of State for the Home Department, whereby he (i) refused to issue a formal notice of refusal of asylum, (ii) refused to refer fresh material supplied by the applicant back to the immigration appellate authorities under s 21 of the Immigration Act 1971 and (iii) issued directions for the applicant's removal to Nigeria. The facts are set out in the judgment of Sir Thomas Bingham MR.Counsel:
Nicholas Blake QC and Duran Seddon for the applicant; Neil Garnham for the Secretary of State.Judgment-READ:
Cur adv vult 28 March 1996. The following judgments were delivered. PANEL: SIR THOMAS BINGHAM MR, ROCH, SWINTON THOMAS LJJSIR THOMAS BINGHAM MR:
This appeal raises questions of general importance on the law and practice of asylum in the United Kingdom. If asylum has been claimed and refused, and the claimant has pursued his rights of appeal without success, may he make another claim for asylum, and if so in what circumstances and with what procedural consequences?I
The applicant, Mr Ademola Onibiyo, is a Nigerian born on 7 December 1975 and now aged 20. On 29 August 1987 when he was aged 11 he arrived in the United Kingdom with his mother and two younger siblings, having flown from Nigeria via Frankfurt. His father had entered the United Kingdom in 1964 and had acquired settled status. He had lost this status on returning to Nigeria between 1977 and 1983. But he had returned here in 1984 and had been granted leave to enter as a student for 12 months. Two of the applicant's older siblings had been born in this country and become United Kingdom citizens. On his arrival in August 1987 the applicant was granted leave to enter as a visitor for six months until 29 February 1988. That period was extended for a further six months until 29 August 1988. He applied out of time for leave to remain but leave was refused on 26 November 1991. On 24 June 1993 the applicant was arrested as an overstayer and served with notice of intention to deport. He exercised his right of appeal, but at the hearing of the appeal it was conceded on his behalf that there was no ground for challenging the decision to deport. The appeal was accordingly dismissed, although the adjudicator recommended that the applicant be allowed to remain in the country until the end of that academic year. The applicant was, and has since (when at liberty) been, engaged in study at various colleges. On 14 November 1994 an order was signed for the applicant to be deported and this order was served on him on 25 March 1995 when he was detained at Kennington Police Station. Removal directions were given for 27 March 1995. On 26 March 1995 the applicant applied for asylum. In his then solicitors' letter of that date the application was put on the ground --'that he is of the Tribe of Yoruba, the same as their leader, Mr Abiola. This particular tribe have been objects of hatred by the Abacha Government and are being persecuted intensely and he fears that his life will be in danger if he is returned to Nigeria.'
The applicant was interviewed: in answer to questions he referred, in general terms, to political activities of his father and made plain that his own claim for asylum was based on his father's political activities. On 1 July 1995 the Secretary of State refused the applicant's claim for asylum. His reasons were set out in a long letter of that date. The Secretary of State did not find it credible that the applicant had a well-founded fear of returning to Nigeria because of his father's political activities and concluded that the claim for asylum had been concocted purely in an attempt to avoid removal from the United Kingdom. The applicant was served with a notice dated 11 July 1995 informing him that the Secretary of State had decided to treat his application as a request for the revocation of the deportation order previously made against him. He was told that the Secretary of State had refused his application for asylum and had accordingly refused to revoke the deportation order. On 1 August 1995 the applicant exercised his right to appeal against this decision under s 8(3)(b) of the Asylum and Immigration Appeals Act 1993, to which reference is made below. He was released on bail. The applicant's appeal was heard on 18 September 1995, together with an appeal by his father (with his dependent wife and children), on whose behalf a claim for asylum had also been made. It was plain that the applicant could not succeed as a minor dependant of his father, since he was not under the age of 18. His claim for asylum therefore had to be judged on its own merits. It was conceded by counsel on his behalf that he could not establish a well-founded fear of persecution for a convention reason (see the Convention Relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171)). The special adjudicator observed:'His application for asylum was made when it was quite clear from his interview that he could not hope to qualify for refugee status in his own right. It was quite rightly conceded straight away before me that he could not succeed. This, in my view, amounts in effect to an abuse of process and I conclude the application was only used as a means of delaying his departure and to seek a recommendation.'
The father's claim for asylum was also held to be entirely without merit and his appeal also was dismissed. The applicant was again detained. Both he and his father were refused leave to appeal to the Immigration Appeal Tribunal on 4 October 1995. The applicant's father was returned to Lagos under escort on 26 October 1995. It is said that he was expected to make contact with his family and colleagues in this country on his return to Nigeria but has not done so. On the evidence before the court, nothing has been seen or heard of the father since his arrival at the airport in Lagos. On 27 October 1995 the Secretary of State wrote to the applicant's solicitors informing them of his intention to deport the applicant. The solicitors made representations against this course, and by letter of 30 November 1995 gave notice of a fresh application for political asylum on behalf of the applicant. The grounds of this application were elaborated in a letter of 4 December 1995, in which it was stated that the application was a new one and based on factors and circumstances that had not previously been considered. The letter said that the applicant had a well-founded fear of being persecuted in Nigeria 'for reasons of membership of a particular social group and political opinion'. He was said to be a supporter of and associated with the opposition movement in Nigeria. Enclosed with the letter or sent at the same time were a statement of the applicant, a letter from the Nigerian Democratic Movement (UK), an extract from a report of the Parliamentary Human Rights Group on the situation in Nigeria, an October 1995 report of the Refugee Council on the Home Office and Nigeria entitled 'Beyond Belief' (a critique of the Home Office's assessment of the human rights situation in Nigeria), and a report on Nigeria of a mission established pursuant to the Commonwealth Human Rights Initiative. Reference was made to recent events in Nigeria and in particular to the execution of Mr Ken Saro-Wiwa and eight other Ogoni people. By letters written on 5 and 6 December 1995 the applicant's solicitors urged the Home Office to defer the removal of the applicant, to give proper consideration to his claim for political asylum and to allow time for them to gather evidence. They asked that the request for political asylum should be read as including a request to revoke the deportation order in force against the applicant. The Home Office replied in a letter of 6 December 1995. This letter acknowledged the applicant's solicitors' representations and enclosures, some of which the Home Office had already received and considered. The letter said:'The Secretary of State has given careful consideration to the issues you have raised but is of the view that your representations of 4 December do not constitute a fresh claim for asylum. Although, it is now claimed that Mr Onibiyo is a supporter of and is associated with the opposition in Nigeria and that his political convictions would cause him difficulty it is still the situation of Mr Onibiyo's father and the political climate in Nigeria that remains the basis of his application. Accordingly your letter of 4 December 1995 has been treated as further information to Mr Onibiyo's original asylum claim.' (The Home Office's emphasis.
The Home Office (it was said) had no evidence that the applicant's father was detained and no reason to believe that ordinary supporters of the pro-democracy movement or their relatives were likely to be subject to persecution. The Secretary of State had carefully considered the applicant's request for revocation of the deportation order against him, but did not consider that there had been any material change in circumstances since the previous refusal decision sufficient to justify revocation and he was not prepared to delay further the deportation of the applicant. The applicant's solicitors took issue with this letter by a letter written on the same date, 6 December 1995, and enclosed a notice of appeal to a special adjudicator under s 8(3)(b) of the 1993 Act. The Home Office maintained its position. In a letter of 7 December 1995 an official said:'I am aware that you have treated my letter of 6 December as a refusal of asylum and have accordingly submitted notice of appeal to the Special Adjudicator. However, as explained in my letter of 6 December your representations of 4 December were not considered as a fresh asylum application but as further information to Mr Onibiyo's original asylum claim of 26 March 1995. Therefore, my letter of 6 December does not constitute a refusal of asylum but a consideration and dismissal of the further information you provided in your letter of 4 December. In the circumstances the Secretary of State has not made a fresh decision and your appeal of 6 December 1995 is invalid as there is no decision on which you have an avenue of appeal to the appellate authorities.'
The Home Office did, however, agree to a deferment of the applicant's removal. By letters written on 11 and 12 December the applicant's solicitors and the Home Office reiterated their respective positions. On 13 December 1995 the applicant made an application for leave to move for judicial review. The decisions which he sought to challenge were the refusal of the Home Office on 12 December 1995 to issue a formal notice of refusal of asylum, the decision of the Home Office of 12 December 1995 refusing to refer the fresh material which the applicant had supplied back to the immigration appellate authorities under s 21 of the Immigration Act 1971, and the directions given for the removal of the applicant. Dyson J gave leave to move and the application came before Latham J on 19 January 1996. He dismissed the application and the applicant now appeals against that decision with the leave of the judge.II
The Geneva Convention, read with the 1967 Protocol (New York, 31 January 1967; TS 15 (1969); Cmnd 3906), provides in art 33(1):'No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.'
This is the overriding obligation to which states party to the convention commit themselves. The risk to an individual if a state acts in breach of this obligation is so obvious and so potentially serious that the courts have habitually treated asylum cases as calling for particular care at all stages of the administrative and appellate processes. By art 1A of the convention as amended by the protocol a refugee is any person who --'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence . . . is unable or, owing to such fear, is unwilling to return to it.'
The 1993 Act was passed to make provision for persons who claim asylum in the United Kingdom. Section 1 of the Act defined a 'claim for asylum' as meaning --'a claim made by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom . . .'
Section 2 provides that nothing in the immigration rules shall lay down any practice which would be contrary to the convention. Section 6 provides:'During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom.'
Section 8, so far as material, reads:'(1)A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention.
(2)A person who has limited leave under the 1971 Act to enter or remain in the United Kingdom may appeal to a special adjudicator against any variation of, or refusal to vary, the leave on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be required to leave the United Kingdom after the time limited by the leave.
(3)Where the Secretary of State --
(a)has decided to make a deportation order against a person by virtue of section 3(5) of the 1971 Act, or
(b)has refused to revoke a deportation order made against a person by virtue of section 3(5) or (6) of that Act,
the person may appeal to a special adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention; but a person may not bring an appeal under both paragraph (a) and paragraph (b) above.
(4)Where directions are given as mentioned in section 16(1)(a) or (b) of the 1971 Act for a person's removal from the United Kingdom, the person may appeal to a special adjudicator against the directions on the ground that his removal in pursuance of the directions would be contrary to the United Kingdom's obligations under the Convention . . .'
Schedule 2 to the Act contains supplementary provisions governing appeals under s 8. Paragraph 2 of the schedule provides that a person may not bring an appeal on any of the grounds mentioned in s 8(1) to (4) of the Act unless, before the time of the refusal, variation, decision or directions (as the case might be) he had made a claim for asylum. Paragraph 3 provides that a special adjudicator hearing an appeal under s 8 of 1993 Act shall deal in the same proceedings with appeals under the 1971 Act. The Asylum Appeals (Procedure) Rules 1993, SI 1993/1661, were made a few days after the passing of the 1993 Act. These rules provide, in rule 5(2)(b), for notice of appeal to be given in two days in a case where the Secretary of State certifies the claim to be without foundation. In such a case the special adjudicator is required by rule 9(2) to determine the appeal not later than seven days after receiving notice of the appeal, as compared with 42 days in other cases. By rule 22(3) of these rules, rule 35 of the Immigration Appeals (Procedure) Rules 1984, SI 1984/2041, applies to asylum appeals. Rule 35 of the 1984 rules reads:'(1)Subject to the provisions of paragraph (2) below, where it appears to an appellate authority that the issues raised on an appeal have been determined --
(a)in the case of an appeal before an adjudicator, by the same or another adjudicator or by the Tribunal, or
(b)in the case of an appeal before the Tribunal, by the Tribunal,
under Part II of the Act in previous proceedings to which the appellant was a party, on the basis of facts which did not materially differ from those to which the appeal relates, the authority may forthwith determine the appeal without a hearing.
(2)Before an appellate authority determines an appeal without a hearing in accordance with paragraph (1) above, the authority shall give the parties an opportunity of making representations to the effect that the appeal ought not be so determined.'
Rule 26 of the 1993 rules provides:'In rule 35 of the 1984 Rules, the reference in paragraph (1) to "previous proceedings" shall be treated as including proceedings under the 1993 Act.'
In the Statement of Changes in Immigration Rules (HC Paper (1994) No 395) (the 1994 rules) the Home Secretary laid down rules to govern the practice to be followed in the case of asylum applications. In rule 327 an asylum applicant was defined as --'a person who claims that it would be contrary to the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees for him to be removed from or required to leave the United Kingdom.'
Such cases were to be described in the rules as asylum applications. Rule 328 provided:'All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules.'
Until an asylum application has been determined by the Secretary of State, no action will be taken to require the departure of the asylum applicant or his dependants from the United Kingdom (see rule 329). Rule 346 provides:'When an asylum applicant has previously been refused asylum in the United Kingdom and can demonstrate no relevant and substantial change in his circumstances since that date, his application will be refused.'
Rule 347 reads:'When an asylum applicant has come to the United Kingdom from another country which is party to the United Nations Convention relating to the Status of Refugees or its Protocol and which has considered and rejected an application for asylum from him, his application for asylum in the United Kingdom may be refused without substantive consideration of his claim to refugee status. He may be removed to that country, or another country meeting the criteria of paragraph 345, and invited to raise any new circumstances with the authorities of the country which originally considered his application.'
III
The first issue argued in this court was whether, as a matter of law, a person may during a single uninterrupted stay in the United Kingdom make more than one 'claim for asylum'. By 'claim for asylum' is meant a claim falling within the definition in s 1 of the 1993 Act. The applicant argued that after dismissal of a first claim, a fresh claim could in law be made. The Secretary of State took a different view: he argued that once a person had made a 'claim for asylum', been refused by the Secretary of State and unsuccessfully exercised his rights of appeal under s 8 of the 1993 Act, that exhausted his legal rights. He could lay new material before the Secretary of State and the latter, if so advised, could in the exercise of his discretion refer such material to a special adjudicator or the tribunal under s 21 of the 1971 Act (applicable to asylum cases by virtue of para 4(2)(d) of Sch 2 to the 1993 Act) for consideration by that person or body. But once there had been one claim for asylum and one appeal, there could be no further 'claim for asylum' unless the claimant had left the United Kingdom and returned before making the fresh application. The judge accepted the Secretary of State's argument. After a careful review of the relevant provisions and authorities, and of the arguments addressed to him, he said:'I have therefore come to the conclusion that the statutory scheme of the 1993 Act envisages a claim for asylum which becomes a historical fact entitling the asylum seeker to exercise a right of appeal under s 8 against any relevant administrative decision or action. Any further material submitted or applications made by or on behalf of the asylum seeker are submitted or made in support of the original claim, whether they are made before or after the Secretary of State has made his decision on the claim or before or after any appeal under s 8. If the appeal is dismissed, then the material or applications will be considered by [the] Secretary of State in the exercise of the discretion which it is accepted that he has, to reconsider his decision, and if he considers it appropriate, to refer any matter arising out of those materials or applications to an adjudicator under s 21 of the 1971 Act.'
I prefer the applicant's argument on this point. The obligation of the United Kingdom under the 1951 convention is not to return a refugee (as defined) to a country where his life or freedom would be threatened for any reason specified in the convention. That obligation remains binding until the moment of return. A refugee (as defined) has a right not to be returned to such a country, and a further right not to be returned pending a decision whether he is a refugee (as defined) or not. It would in my judgment undermine the beneficial object of the convention and the measures giving effect to it in this country if the making of an unsuccessful application for asylum were to be treated as modifying the obligation of the United Kingdom or depriving a person of the right to make a fresh 'claim for asylum'. It cannot, in my view, make any difference whether the person making the fresh 'claim for asylum' has left the country and returned or remained here throughout. Any other construction would in my view be offensive to common sense. However rarely they may arise in practice, it is not hard to imagine cases in which an initial 'claim for asylum' might be made on insubstantial, or even bogus, grounds, and be rightly rejected, but in which circumstances would arise or come to light showing a clear and serious threat of a kind recognised by the 1951 convention to the life or freedom of the formerly unsuccessful applicant. A scheme of legal protection which could not accommodate that possibility would in my view be seriously defective. Nothing in the convention or in the measures summarised in section II above in my view supports the Secretary of State's construction. By contrast, it appears to me that r 35 of the 1984 rules and r 26 of the 1993 rules give some support to the applicant. I do not accept, in the absence of any indication to that effect, that r 346 of the 1994 rules only applies where an applicant has left the United Kingdom and returned. Rule 347 of the 1994 rules plainly envisages that an applicant may raise new circumstances with the authorities of another country following an initial refusal by those authorities, although in this instance an intervening visit to the United Kingdom is postulated. Neither side suggested that this question was concluded by authority, but in my view the applicant has much the best of such relevant references as there are in the cases. In Kalunga v Secretary of State for the Home Dept [1994] Imm AR 585 at 588, counsel for the Secretary of State accepted --'that there can be, depending on the circumstances, second, or further successive, applications for asylum, and that fresh removal directions, or the refusal to revoke such directions subsequently to such further applications, would trigger a further right of appeal.'
Balcombe, Staughton and Rose LJJ were content to accept that view, although only in the course of refusing, on other grounds, a renewed application for leave to move for judicial review. In R v Secretary of State for the Home Dept, ex p Kazmi [1995] Imm AR 73 Dyson J based part of his judgment on the assumption, not (it would seem) challenged in argument, that there could in law be a fresh 'claim for asylum'. In Singh v Secretary of State for the Home Dept (18 July 1995, unreported); affd [1995] CA Transcript 1618 both Carnwath J and the Court of Appeal accepted the legal possibility of a fresh claim and considered whether on the facts there had been such. In M v Secretary of State for the Home Dept [1996] 1 All ER 870, [1996] 1 WLR 507 the court rejected the argument that a prior unsuccessful claim could deprive a person of his right to make a later fresh claim, although again the applicant failed on the facts. I differ from the judge on this first issue.IV
It is plain from s 8 of the 1993 Act that an appeal lies not against the refusal of asylum, but against a decision made or action taken or not taken pursuant to a refusal of asylum. If, contrary to the Secretary of State's central submission, there can in law be a fresh 'claim for asylum' following an earlier refusal or refusals, three main questions arise for consideration. (1) What constitutes a fresh claim? (2) How and by whom is it decided whether a claim is a fresh claim or not? (3) What are the procedural consequences of a decision that a claim is or is not a fresh claim? These questions must be considered in turn.(1) A fresh claim?
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] 3 All ER 745, [1954] 1 WLR 1489, of previous unavailability, significance and credibility. Stuart-Smith LJ considered this matter in Singh's case, where he said (with the agreement of Rose LJ and Sir John Balcombe):'In my opinion, in deciding whether or not a fresh claim to asylum is made, it is necessary to analyse what are the essential ingredients of a claim to asylum and see whether any of those ingredients have changed. A useful analogy is to consider a cause of action. In order to establish a cause of action a plaintiff must prove certain ingredients. How he proves them is a matter of evidence. If he changes the essential ingredients, he is asserting a different cause of action.
What are the essential ingredients of a claim for asylum? First, that the applicant has a well-founded fear of persecution; secondly, that he has that fear in relation to the country from whence he came; thirdly, that the source of the persecution is the authorities of that state or, alternatively, some other group of local population where the actions of the group are knowingly tolerated by the authorities, or that the authorities refused or are unable to offer effective protection (see the Handbook on Procedures and Criteria for Determining Refugee Status published by the United Nations High Comr for Refugees (1979) para 65); finally, that the persecution is by reason of the applicant's race, religion, nationality or membership of a particular social or political group.
In my view, it is only if the applicant asserts that one or more of these essential ingredients is different from his earlier claim that it can be said to be a fresh claim.'
I agree with this passage, and with the propositions (quoted above) accepted by counsel for the applicant. There is danger in any form of words, which can too easily be regarded as a binding formula. In Singh's case Carnwath J held that a change in the character of the application was required. I am content with that statement, provided it is not taken to mean that there must necessarily be a change in the nature of the persecution said to be feared. The acid test must always be whether, comparing the new claim with that earlier rejected, and excluding material on which the claimant could reasonably have been expected to rely in the earlier claim, the new claim is sufficiently different from the earlier claim to admit of a realistic prospect that a favourable view could be taken of the new claim despite the unfavourable conclusion reached on the earlier claim.