Kalunga v. Secretary of State for the Home Department

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	27 July 1994
Citation / Document Symbol	[1994] Imm AR 585
Cite as	Kalunga v. Secretary of State for the Home Department, [1994] Imm AR 585, United Kingdom: Court of Appeal (England and Wales), 27 July 1994, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b6a414.html [accessed 27 May 2023]
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.

KALUNGA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Court of Appeal (Civil Division)

[1994] Imm AR 585

Hearing Date: 27 July 1994

27 July 1994

Index Terms:

Political asylum -- refusal by the Secretary of State -- appeal dismissed -- further evidence submitted by representatives -- considered by Secretary of State -- removal directions maintained -- whether representative's letter and submission of fresh evidence constituted a second application for asylum -- whether there could be circumstances in which successive applications for asylum could be made, each giving rise to rights of appeal -- categorisation of the nature of an application a matter for the Secretary of State. Immigration Act 1971 s 16 sch 3 para 16(2): Asylum and Immigration Appeals Act 1993 ss 1, 6, 8, sch 2: Immigration Appeals (Procedure) Rules 1984 r 35: Asylum Appeals (Procedure) Rules 1993 r 26: HC 251 paras 180L, 180N.

Held:

Renewed application for leave to move for judicial review, following refusal by May J. The applicant had been refused asylum by the Secretary of State: an appeal had been dismissed by a special adjudicator. Subsequently the applicant's representatives had sent to the Secretary of State further evidence germane to a claim for asylum. That evidence the Secretary of State considered but maintained his refusal and the original removal directions.

Counsel argued that the representative's letter and the fresh evidence grounded a new second application for asylum. The Secretary of State had maintained his view that they constituted no more than a request to review the maintained decision. Accordingly in the view of the Secretary of State, no further right of appeal arose in the present case.

Held

1. The provisions of the 1993 Act could give rise to successive applications for asylum, each of which if refused would give the applicant a right of appeal.

2. It was however for the Secretary of State to determine whether, in each case, an approach to him was by way of a fresh application for asylum or merely amplification of the grounds on which an existing application for asylum had already been made.

3. Such a determination by the Secretary of State was susceptible to challenge, but not in this instant case.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Lemba Kalunga (unreported, QBD, 19 July 1994).

Counsel:

R de Mello for the applicant; Miss L Giovannetti for the respondent

PANEL: Balcombe, Staughton, Rose LJJ

Judgment One:

ROSE LJ: There is before the court a renewed application for leave to move for judicial review following refusal of leave by May J on 19 July 1994. The applicant seeks to challenge decisions of the Secretary of State for the Home Department in relation to the applicant's application for asylum. In particular, the Form 86 identifies as the subject of challenge the refusal to grant asylum by letter of 14 June 1994; the refusal to refer the matter under section 21 of the 1971 Immigration Act for further consideration in his letter of 8 July 1994; and his refusal to issue a fresh notice of refusal and to acknowledge in the applicant his right of appeal under section 8 of the Asylum and Immigration Appeals Act 1993.

The material facts, in outline, are that the applicant arrived in the United Kingdom from Zaire, where he had been born, in the middle of September 1991. On 16 September he claimed asylum. Thereafter, in November 1992 and February 1993, he failed to attend the asylum interview to which he had been summoned. In consequence he was arrested in February 1993 and at the end of that month an asylum interview was carried out.

The consequence was a minded to refuse letter on 23 April 1993. Thereafter, on 6 July the Secretary of State refused asylum. On 21 September 1993, he gave removal directions in relation to the applicant.

The applicant thereupon exercised his right of appeal to the special adjudicator who dismissed the appeal on 27 January 1994. Two months later, a letter was sent on behalf of the applicant to the Secretary of State enclosing a medical report which suggested that marks upon the applicant were consistent with his having been tortured. There was also sent a letter enclosing a psychological report.

On 14 June 1994, the Secretary of State wrote indicating that, having considered the further information contained in both of those reports, he remained of the view that the applicant had not established a well-founded fear of persecution, and in consequence had no claim to asylum, and that arrangements were then being made for the removal of the applicant at the earliest opportunity.

On 8 July, there was a request made for the matter to be referred back to the special adjudicator, but the Secretary of State declined so to do. On 13 July a further letter was written by solicitors acting on the applicant's behalf, outlining the circumstances which to the applicant appeared to indicate that a fresh application for asylum had been made. That letter referred specifically to the new medical evidence which I have already mentioned.

The submission was made in these terms on page two of that letter:

"It is therefore our view that these representations coupled together with the medical evidence should be regarded as constituting a change in circumstance and therefore a fresh application. Our position in this regard is supported, in our view, also by the terms of paragraph 180L of HC 725."

The hope was also expressed in that letter that the decision of the Secretary of State on 14 June should be regarded as attracting a right of appeal.

A response was sent to that letter on 14 July, the material part of which is in these terms:

". . . we remain satisfied that all material submitted in support of Mr Kalunga's case has been fully and fairly considered, we are not prepared to treat this as a fresh application. Furthermore, Mr Kalunga's appeal was dismissed in January this year by an independent adjudicator and there is no right of appeal against Mr Gale's letter of 14 June which was in response to representations you had submitted on Mr Kalunga's behalf after this appeal had been dismissed."'

It is not suggested by Mr de Mello, who has presented the applicant's renewed application to this court, that the conclusion that there was not a fresh application is susceptible to challenge on Wednesbury grounds.

The way in which Mr de Mello presents the matter is this: he invites the attention of the court to sections 1, 6 and more particularly 8 of the Asylum and Immigration Appeals Act 1993. Section 8 identifies the circumstances in which rights of appeal to a special adjudicator exist. They include, in sub-section 4, where directions have been given in accordance with section 16 of the 1971 Immigration Act for a person's removal from the United Kingdom: in such a case a person may appeal to a special adjudicator against the directions on the ground that removal would be contrary to the United Kingdom's Convention obligations.

Mr de Mello draws attention to the terms of section 16(1)(a), which is relevant for present purposes, but which it is unnecessary to read. He also draws attention to schedule 2, in particular paragraph 16(2) of the Immigration Act 1971, which provides that:

"A person in respect of whom directions may be given under any of paragraphs 8 to 14 above may be detained under the authority of the Immigration Officer pending a direction and pending his removal in pursuance of any directions given."

Section 8 of the 1993 Act provides, in sub-section 6, that schedule 2 to the Act applies to appeals brought under the provisions of section 8 to which I have already referred. Paragraph 2 of schedule 2 provides:

"A person may not bring an appeal on any of the grounds mentioned in sub-sections (1) to (4) of section 8 of this Act unless before the time of the refusal, variation, decision or directions (as the case may be), he has made a claim for asylum."

The Statement of Changes in Immigration Rules HC 725 contain the following in rule 180L:

"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 180N provides for rights of appeal when asylum has been refused.

The Asylum Appeals (Procedure) Rules 1993 provide by rule 26 that:

"In Rule 35 of the 1984 Rules the reference to 'previous proceedings' shall be treated as including proceedings under the 1993 Act."

Rule 35 of the 1984 rules is in these terms:

"1. Subject to the provision of paragraph 2 below where it appears to an appellate authority that the issues raised on appeal have been determined in the case of an appeal before an adjudicator, by the same or another adjudicator, or by the tribunal . . . 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."

The submission which Mr de Mello makes in the light of that legislation and those rules is, first, that they allow for an appeal against a subsequent refusal of political asylum, provided that the original claim for political asylum which has been refused was made before the issue of directions for removal.

Alternatively, Mr de Mello submits that, as the removal directions in the present case continued in force on 14 July (which, as it seems to me, is clearly right), those directions were linked to a second refusal of asylum allowing a second appeal. For my part, I do not accept that the second part of that proposition follows from the first.

Thirdly, Mr de Mello submits that section 6 of the 1993 Act (which protects an asylum applicant against deportation) is not limited to one claim for asylum. For my part, I am prepared to accept for the purposes of the present case that that is correct.

Mr de Mello accepts that if his primary submission is well-founded, there is no obstacle to successive and repeated claims for asylum being made and for appeals to be pursued, so that the purpose of the 1993 Act can be circumvented. That, as it seems to me, gives an immediate cause for questioning whether the thrust of Mr de Mello's submission is likely to be well-founded.

For the Secretary of State, Miss Giovannetti accepts that there is a right of appeal triggered by removal directions given and not revoked subsequent to refusal of asylum. That follows from the provisions of section 8 and the second schedule to the 1993 Act.

She also accepts 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.

But, she submits, the fundamental problem facing Mr de Mello is that, in the first instance, it is for the Secretary of State to decide whether the nature of an approach to him is by way of a fresh application for asylum or merely amplification, by submission of further evidence or submissions or otherwise, of the grounds on which an existing application for asylum has already been made.

Unless the Secretary of State's categorisation of the approach as not being a fresh application for asylum is susceptible to challenge (and as I have indicated Mr de Mello does not suggest in the present case that it is susceptible to challenge), it follows, says Miss Giovannetti, that there is no means for the applicant to assert that he has a further right of appeal against the Secretary of State's repetition of his refusal of asylum by reference to the application made to him.

For my part, I have no hesitation in accepting that Miss Giovannetti's submissions are correct. However well-founded Mr de Mello's first submission may be as to the right of appeal and otherwise given by the statute and the rules, those provisions could only come into play, in the circumstances of the present case, if that which occurred in July 1994 amounted to a fresh application for asylum.

As the Secretary of State determined that it did not, and as that decision is not susceptible to challenge, it follows, in my judgment, that there is no arguable ground on which leave could properly be given to permit this application for judicial review to proceed.

Accordingly, for my part, I would dismiss this renewed application.

Judgment Two:

STAUGHTON LJ: The Statement of Changes in Immigration Rules HC 725 provides in rule 180L that there can be more than one application for asylum. What is more, it contemplates that there may be a subsequent application, although the applicant cannot demonstrate any relevant and substantial change in his circumstances.

Paragraph 2 of schedule 2 in the Asylum and Immigration Appeals Act 1993 provides:

"2. A person may not bring an appeal on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act unless, before the time of the refusal, variation, decision or directions (as the case may be), he has made a claim for asylum."

It seems to me to follow from that that one claim for asylum will justify no more than one appeal.

The question then is: has there been more than one claim for asylum in this case? Whether the judge of that be the Secretary of State, subject only to his decision not being wholly irrational, or whether it be a matter of precedent fact which is to be decided by the court, it is clear to me that there has been only one claim for asylum in this case.

I do not need to attempt a definition or to suggest factors which will enable one to decide the difference between one claim and two claims. It is plain that there has been only one claim in this case. Hence there can only be one appeal; and that has already taken place.

I would also dismiss this application.

Judgment Three:

BALCOMBE LJ: I agree.

DISPOSITION:

Application dismissed

SOLICITORS:

Powell & Co, London, SE18; Treasury Solicitor