Fresh asylum claim for adjudicator to decide

LAW REPORT v 17 October 1995

Regina v Secretary of State for the Home Department, ex parte Singh; Queen's Bench Division (Mr Justice Carnwath) 18 July 1995

The question whether a person seeking political asylum, following rejection of his claim, had made a fresh claim on a fundamentally different basis, or simply amplified the grounds for his original claim, was to be decided by the adjudicator hearing his appeal against removal, not the Home Secretary.

Mr Justice Carnwath nevertheless refused an application by Manvinder Singh for judicial review of the Home Secretary's decision, communicated on 6 March 1995, that Mr Singh had not made a fresh claim for political asylum following rejection of his original claim and had no further right of appeal, since the adjudicator, had he considered the matter, would have reached the same conclusion.

The applicant, an Indian national, first applied for political asylum in November 1993 on the ground that his cousin, Balvinder Singh, had been killed by Sikh terrorists after refusing to join their cause, and, as he looked exactly like his cousin, the terrorists thought the cousin was still alive. They had also threatened his maternal aunt and in 1991 had killed his grandfather.

The Home Secretary refused his asylum claim on 19 January 1994. His appeal was dismissed by the special adjudicator on 12 March 1994. An application for leave to appeal to the Immigration Appeal Tribunal was refused by the chairman on 6 April 1994. Removal directions were given, and arrangements had been made for him to leave the country on 15 December 1994 when, on 13 December, his solicitors wrote to the Immigration Office:

It would seem that our client's fear of the militants is borne out by our client's father being killed, would you therefore please reconsider this matter.

They submitted various documents but the Immigration Office pointed out that these documents related to the death of the applicant's grandfather, not father. That had already been taken into account. On 22 December the solicitors wrote correcting the earlier information and producing evidence that the applicant's father had been injured in a militant attack on 17 November 1994.

On 21 February, Mr Watt of the Asylum and Special Cases Division wrote a detailed response, concluding that the Home Secretary was satisfied the authorities in India were able to protect the applicant and his family.

On 3 March a faxed message was sent to the solicitors giving "removal directions" for 8 March 1995. On the same day the solicitors wrote to Mr Watt saying they would appeal to the special adjudicator on the basis that their recent letters constituted a fresh application for asylum. On behalf of the Secretary of State, Mr Watt rejected that argument, saying the later documentation produced merely amplified, and did not alter, the fundamental basis of the applicant's claim, namely that his life remained in danger from the same sources.

James Gillespie (Moody & Woolley, Birmingham) for the applicant; Steven Kovats (Treasury Solicitor) for the Home Department.

Mr Justice Carnwath said the right of appeal asserted in this case was under section 8(4) of the Asylum and Immigration Appeals Act 1993, which applied "Where directions are given . . . for a person's removal from the United Kingdom . . ."

Removal directions were given by the immigration officer, not the Secretary of State. Under the Asylum Appeals (Procedure) Rules 1993, notice of appeal was given by service on the immigration officer, not the Secretary of State. The immigration officer then passed the notice on to the adjudicator. Only when the appeal was so constituted did the Secretary of State become a party.

The issue whether there had been a "fresh claim" arose, if at all, under para 2 of Schedule II to the 1993 Act, under which a person could not appeal under section 8(4) unless he had made a claim for asylum. It was expressed as a procedural bar. As such it was a matter normally to be decided, in the first instance, by the court or tribunal to which the appeal had been made, namely the adjudicator, not the Secretary of State.

Neither the Act nor the Rules provided any immediate role for the Secretary of State when a notice of appeal was lodged. He was therefore wrong to regard his decision on whether there was a new claim as necessarily final.

Paul Magrath, Barrister