Asylum seekers can only make one claim

LAW REPORT 24 January 1996

Regina v Secretary of State for the Home Department, ex parte Ademola Onibiyo; Queen's Bench Division (Mr Justice Latham); 19 January 1996

Under the Asylum and Immigration Appeals Act 1993, an asylum seeker, while remaining in Britain, is permitted only one application for asylum to which any right of appeal attaches. Any material submitted by the asylum seeker after the dismissal of an appeal is submitted in support of the one claim and could not constitute a fresh claim with a fresh right of appeal. Such material would be considered by the Home Secretary in the exercise of discretion.

Mr Justice Latham dismissed the applicant's application for judicial review of the Home Secretary's refusal to revoke a deportation order against the applicant.

The applicant, a Nigerian national who had overstayed his limited leave to remain in this country, applied for political asylum when served with a deportation order. The Home Secretary rejected the application and the applicant's appeal was dismissed by a special adjudicator in September 1995. In November 1995 his solicitors submitted further documentation to support what was described as "a fresh application for political asylum". The Home Secretary decided that the application was not a fresh claim, and that it did not disclose any material which justified reversing his earlier decision.

The applicant applied for judicial review of the Home Secretary's decision asking that the Home Secretary should consider the fresh application or refer the matter to the immigration appellate authorities to consider the fresh matters. The Home Secretary argued that the Asylum and Immigration Appeals Act 1993 permitted only one application for asylum to which any rights of appeal could attach in respect of any single visit to this country, and that the decision that the November application was merely amplification of the original application was not irrational and was not fresh administrative action to which a right of appeal attached.

Nicholas Blake QC and Duran Seddon (Fisher Meredith) for the applicant; Neil Garland (Treasury Solicitor) for the Home Secretary.

Mr Justice Latham said that the Court of Appeal in R v Immigration Appeal Tribunal, ex parte the Home Secretary [1990] 1 WLR 1126 had rejected the argument there could only be one appeal on an asylum claim in relation to rights of appeal under the Immigration Act 1971. The applicant argued that the same reasoning should apply under the 1993 Act.

An application for leave to enter might be made on different grounds. The effect of the 1993 Act had been to provide a separate statutory scheme for applications based on a claim for asylum. The statutory scheme envisaged a claim for asylum which became a historical fact entitling the asylum seeker to exercise a right of appeal under section 8 against any relevant administrative decision or action.

Any further material submitted or applications made were submitted and made in support of the original claim, whether they were made before or after the Home Secretary had made his decision on the claim or before or after any appeal under section 8. If the appeal was dismissed, then the material or application would be considered by the Home Secretary in the exercise of his discretion to reconsider his decision, and, if he considered it appropriate, to refer any matter arising out of those materials or applications to an adjudicator.

That construction provided a coherent scheme consistent with the statutory background. It avoided the necessity to consider a question which was fraught with difficulty, namely whether any subsequent application for asylum could properly be described as a "fresh claim". It had the merit of making sense of the proviso to section 8(3), which was necessary because each decision in the subsection was a separate decision which would otherwise carry separate rights of appeal.

If, after dismissal of an appeal, the Secretary of State adhered to his original decision on asylum and as to the appropriate administrative decision or action, whether or not he had considered any further representations, he did no more than give effect to that original decision or action. The application was dismissed.