England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

LORD JUSTICE STUART-SMITH: This is an appeal from the judgment of Carnworth J given on 18 July 1995 by which he dismissed the applicants application for judicial review of decision taken by the Secretary of State for the Home Department refusing to accept a document forwarded by the applicant's solicitors and dated 3 March 1995 as a notice of appeal in relation to a claim for asylum.

The applicant is an Indian national who arrived clandestinely in the United Kingdom in September 1993. He was arrested by the police in November 1993 and he applied for political asylum. He left India 18 months earlier and had spent five months in Russia, one month in Germany and nearly a year in Belgium before coming to this country. In his interview notes he is recorded as claiming his cousin, Balvinder Singh, had been killed by Sikh terrorists because he was "army personnel, the terrorists asked him to join them and he refused". His own claim to asylum was put thus.

"My cousin who was killed looked exactly like me and the terrorists think he is still alive when he sees me. The terrorists invited me to join, if I refuse they will kill me."

He also said:

"The terorists demanded money from my maternal aunty by saying 'Your son is still alive, either pay or hand me your son'. They came to our house enquiring about me. They killed my grandfather in mid 1991."

He also referred to two short periods of detention by the police for reasons which he did not know. The Secretary of State refused his claim for asylum on 19 January 1994. In the decision letter, reference was made to doubts as to the applicant's credibility; to the fact that he had not been involved in political activities himself, that his detention by the police had not involved any ill treatment; and as to the measures adopted by the Indian Government to deal, with violence and terrorism in the Punjab, the letter continued:

"The Indian Government responded to this situation of violence and terrorism by deploying additional security forces in the Punjab in an attempt to counter the activities of the extremists and this is, in the view of the Secretary of State, a proper and necessary measure for combatting serious terrorist crime, for maintaining law and order and for protecting the civil, political and human rights of members of the community in the Punjab of all races and religions.

Having considered all the available evidence, the Secretary of State did not consider Sikhs in India to be a persecuted group who have a claim to refugee status under the 1951 United Nations Convention by virtue of their religion or ethnic origins. Furthermore, the Secretary of State could not be satisfied from the information available to him that if you were to return to India you would face any further threats from any terrorists groups, and that if you did, that you could not seek the protection of the authorities in India."

The applicant appealed under the Asylum and Immigration Appeals Act 1993. The Special Adjudicator dismissed his appeal on 12 March. He referred to the evidence which the applicant gave before him. He said:

"The applicant claimed that Satnam Singh Chhina, a person whom the Appellant described as being an uncle although he was more distantly related, had been a member of the Khalistan party and had been killed by the police because they had declared him to be a terrorist as he had refused their daily demands for money. Further a cousin of the Appellant, named Balwinder Singh, who had previously been a member of the armed forces had been killed by the Khalistan Commando Force (KCF) as he had refused to join them.

As regards his counsin Balwinder Sigh, the Appallant explained that he resembled this cousin. His cousin had been forced to join the Khalistan party, but had avoided as much as possibly any involvement. The Appellant stated that he would be persecuted if he returned to India because he resembled his cousin and therefore the terrorist who had previously visited his cousin would know of him and would also want the Appellant to join them."

He then referred to his grandfather being killed and added this:

"The appellant added that the terrorists had also attempted to kill him in accordance with their threats if he did not join them. This had occurred in July or August 1991 when the Appellant had been living with his cousin. The Appellant could not name the terrorists involved, but explained that he had used to receive messages from them which he had believed as the terrorists usually carried out their threats."

It is clear from that evidence, and also from the answers at interview, that the basis of the claim was both that he might be mistaken for his cousin, and also in respect of himself personally on the basis that he refused to join the Khalistan extremists. The Adjudicator did not find the appellant a credible witness. This was partly because of the discrepancies in his account of what had happened in India and other false details of his background. He did not believe the alleged risk of him being mistaken for his cousin by the terrorists "Bearing in mind that it was those terrorists that had killed his cousin."

He also considered that there was no evidence that the authorities would not be willing or able to afford sufficient protection. He dismissed the suggestion of fears of persecution by the police. The applicant made an application for leave to appeal to the Immigration Appeal Tribunal which was refused on 6 April 1994.

Following that decision, the applicant remained in detention while arrangements were put in hand to return him to India. There was delay in doing that because of difficulty of identifying the applicant at his home address in India. In any event, the applicant was still in this country in December of last year, when arrangements were finally made for him to leave the country on 15 December.

On 13 December his solicitors wrote to the Immigration Office saying that:

"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 to the Immigration Department. The letter pointed out that the documents submitted. referred to his grandfather and not his father.

On 22 December, the applicant's solicitors wrote correcting their earlier statement and they produced evidence that the applicant's father had been injured by a bullet wound when he was caught up in a militant attack on 7 November 1994. They enclosed various letters from India and a newspaper article as further material in support of the applicant's claim. There was a letter from a Doctor certifying that the applicant's father had been admitted to hospital with a gunshot injury and he had been operated upon and stayed in hospital for ten days. They also submitted an affidavit from the father referring to his injury and saying:

"I have received so many threats from the terrorists because of my son Manvinder Singh. They wanted him to help them and in spite of help he faced the anti-national elements and helped the police to get arrested so many terrorists and on the telephone they threat me to kill all the family otherwise to produce Manvinder Singh before them."

There was some delay while a translation of the newspaper article was provided. That was sent on 17 February. It was the Public Saharaa, a Hindi newspaper published in Amritsar. The article reads as follows: "Some armed militants attacked, yesterday evening at about 7 p.m. the junior Engineer of Punjab State Electricity Board, Sardar Bhag Singh. Those militants ran away due to riding in Maruti car of white colour. Two bullets hit Bhag Singh. Militants ran away due to the sudden presence of Police Patrol. It is said that the condition of Bhag Singh is very serious. Sardar Salwant Singh, the father of Bhag Singh, was also shot dead by militants in September 1992. Manvinder Singh, the son of Bhag Singh, is the cause of all this episode; who refused to be a part of militants about 3/4 years ago and faced them without fear of his or his family's life and got many militants arrested with the help of Police. Militants have attackd his house a few times before in the search of Manvinder Singh."

On 21 February 1995 Mr Watt of the Asylum and Special Cases Division wrote a detailed response. He referred to the Secretary of State's awareness of the problems of terrorism in the Punjab but also his view that "In consequence of tough security action taken against the militants" the problems were decreasing. He referred to "The Advocate's letter of 25 February" which refers to the considerable improvement of law and order situation although the letter attempts to qualify that statement. He concluded with this observation:

"Nevertheless the Secretary of State is satisfied that, in view of this much improved situation, Mr Singh and his family could expect to receive the protection of the Indian authorities. Furthermore, no evidence has been put before the Secretary of State to show that the terrorists' activities are tolerated by the Indian authorities or that those authorities are unable or unwilling to provide protection. On these grounds, therefore, the Secretary of State can see no reason to reverse his original decision or refuse Mr Singh's asylum application."

On 3 March a faxed message was sent to the solicitors giving notice of removal directions for 8 March 1995, Also on 3 March the applicant's solicitors wrote to Mr Watt indicating that they were lodging a notice of appeal to the special Adjudicator on the basis that their recent letters constituted a fresh application for asylum and threatening judicial review if this was not accepted. That argument was rejected by the Secretary of State. In an affidavit sworn in these proceedings, Mr Watt says:

"The Applicant's claim for asylum has always been on the basis that his life was in danger, evidenced by attacks on his family and that he was being pursued by those terrorists. The later documentation contains different factual detail from the evidence submitted on the Applicant's behalf at an earlier stage in his claim, in particular referring to new incidents. However, the later documentation does not alter the fundamental basis of the Applicant's claim. It essentially purports to amplify and provide further evidence in support of the same basis of claim, namely that the Applicant's life remains in danger from the same sources.

Consequently, the Respondent decided that the later documentation and the representations from the Applicant's solicitors made with reference to that documentation did not amount to a fresh application for asylum, as there was no alteration to the basis on which the asylum was claimed. I respectfully submit that this decision was one which it was for the Respondent to make and one which he could properly and lawfully make, and therefore one which is not amenable to challenge."

That decision was evidently communicated first of all orally to the applicant's solicitors on 6 March. Judicial review proceedings were immediately launched in relation to the decision of the Secretary of State to refuse to accept the letter of 3 March as a fresh Notice of Appeal to the Special Adjudicator. Leave was granted by Latham J on 9 March and the matter came before Carnwath J as I have described.

In his Form 86A, the applicant accepted that as a matter of law it was for the Secretary of State to decide whether, when a fresh approach was made to him after an initial refusal of asylum, this amounted to a fresh claim which would give rise to a fresh appeal to the Special Adjudicator, or was merely amplification of the grounds already made in the existing application.

It was, however, contended that the Secretary of State's decision in this case not to treat the case as a fresh application, was Wednesbury unreasonable. When the matter came before Carnwath J, it appears to have assumed a rather different complexion. The judge held that it was not for the Secretary of State to decide, subject to review by the court, whether fresh application was being made, but for the appellate Tribunal, namely the Special Adjudicator and, subject to leave to appeal, to the Immigration Appeal Tribunal and the court to decide. However, he held that a Special Adjudicator would be bound to hold that the further information supplied by the solicitors was not a fresh claim for asylum. Accordingly there was no point in remitting the case to the Adjudicator and he dismissed the application for judicial review. He reached this conclusion on the basis, which was not disputed before him, that the fresh "removal directions" had been given on 3 March 1995.

The applicant appeals this decision. The only issue that arises on the appeal, therefore, is whether the judge was correct to hold that the Special Adjudicator would be bound to hold that there was no fresh claim for asylum. However, by the Respondent's notice he raises two further matters. First it is contended that there can only be one appeal to the Special Adjudicator under the 1993 Act in relation to Asylum; secondly, if that is wrong and there is a further right of appeal for a fresh asylum claim, it is for the Secretary of State to decide, subject to review by the court, whether a fresh claim has been made or not, as the judge held, so as to give rise to a further appeal to the Special Adjudicator.

These are important questions but in view of the conclusion to which I have come on the appeal, it is unnecessary to deal with them. My opinion would in any event be obiter. I would only say that in my opinion the judgment of Rose LJ in the case of Lemba Kalunga v Secretary of State for the Home Department [1994] 1 IAR 585, should not be taken as binding authority that it is for the Secretary of State to decide when what is put forward is a fresh claim.

That application in Kalunga's case was dismissed on the basis of a concession made by counsel that it was for the Secretary of State to decide the matter. The point therefore was not argued. I should also record for the sake of completeness that the Secretary of State at one stage wished to resile from the concession made by counsel before the judge that fresh removal directions had been given following the Special Adjudicator's decision, and thereby triggering a fresh appeal under section 8(4) of the 1993 Act, provided a fresh claim for asylum had been made.

The Secretary of State has not sought to pursue this argument, but he is not to be precluded from arguing such a point in another case should it arise. The provisions as to appeal in asylum cases are now governed by the Asylum and Immigration Appeals Act 1993. The scheme of the Act, so far as is relevant, is as follows.

"Claim for asylum' means 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.

'The convention' means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to that Convention."

The definition of refugees, for the purpose of the Convention and the Protocol, is:

"A person who, owing to a 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 of the country of his former habitual residence as a result of such events is unable or, owing to such fear, is unwilling to return to it."

Section 2 of the Act states:

"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.

Section 6. 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 defines the circumstances in which a person may appeal on the grounds that his removal would be contrary to the United Kingdom obligations under the Convention. Subsection (1) relates to refusal of leave to enter the United Kingdom; subsection (2) deals with cases where there is a refusal to vary limited leave to enter or remain in the United Kingdom; subsection (3) relates to a case where the Secretary of State has made a deportation order pursuant to section 3(5) of the 1971 Act, or has refused to revoke a deportation order made under that section or section 3(6) of the 1971 Act.

We are concerned with subsection (4) of the Act which provides:

"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."

It should be noted that the appeal in each case is against the refusal, the deportation order, or the removal directions (as the case may be) and not the rejection of the claim to asylum though that is the ground of appeal. The reference to Section 16(1)(a) of the 1971 Acts relates to the removal directions of someone who is an illegal entrant as was the appellant in this case.

Further provisions as to appeal are contained in schedule 2 of the 1993 Act.

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

In his skeleton argument, Mr Blake accepts that under schedule 2 paragraph 2 of the 1993 Act, a claim previously rejected and dismissed on appeal cannot be made again. He accepts that Parliament cannot have intended removal to be indefinitely deferred pending successive identical appeals, but he submits that the right of appeal depends upon the claim being a different claim from that which was previously determined. He submits that there is no other requirement in the section other than that the claim should be a different one. The question, therefore, is whether a fresh or different claim for asylum was made when the applicant's solicitors furnished the further material in December 1994 and February 1995.

Mr Blake accepts that there is a difference between a fresh claim and fresh evidential material in support of an existing claim, but he submits that in this case the basis or grounds of the claim has changed. In particular, he argues that the basis of the original claim was that the terrorists were prone to mistake the applicant for his cousin and the further information reveals that he is under threat in this own right.

In my judgment, that is factually not correct because, as I have already pointed out, his original claim was based on both grounds. It is then said that there is an important new ground never before advanced, namely that, as revealed in the press report, the terrorists may believe, rightly or wrongly, that the appellant is an informant and for that reason their efforts will be directed especially at him. I pause only to say that I find it hardly credible that if he was an informant he had not disclosed this in interview or in his evidence before the Special Adjudicator. Be that as it may, I do not accept Mr Blake's submission. 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 of the UNHCR paragraph 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. That is not the position here. The source of the fear is still the same, namely, the extremists. The further material is simply additional evidence as to why the extremists may wish to persecute him. It remains the appellant's case that the authorities cannot protect him from that source. Mr Blake accepts that if the further evidence merely supports the original claim he cannot succeed; but he submits strongly that the applicant's original case is different from that now put forward.

In my judgment, on the assumption that the judge was right to hold that more than one appeal could be made, and that it was not for the Secretary of State but the Special Adjudicator to decide whether any particular application amounts to a fresh claim giving rise to a fresh appeal, the judge was entirely correct to hold that this was not a fresh claim.

I would dismiss the appeal.

LORD JUSTICE ROSE: I agree. I particularly associate myself with the comments made by my Lord on my judgment in Kalunga which was an unsuccessful renewed application for leave. The view which I there expressed that, subject to Wednesbury unreasonableness, it is for the Secretary of State to decide whether a fresh application for asylum has been made, was expressed in the light of a concession made by counsel for the applicant in that case, namely that the Secretary of State's conclusion that there was not a fresh application was not susceptible to challenge on Wednesbury grounds. The view which I expressed in that case may or may not turn out to be well-founded as and when argument is specifically addressed to the point.

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SIR JOHN BALCOMBE: I agree.

Order. Appeal dismissed. Legal Aid taxation of appellant's costs.