England and Wales Court of Appeal (Civil Division) Decisions

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

MASTER OF THE ROLLS:

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 6 months until 29 February 1988. That period was extended for a further 6 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 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 section 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 dependent 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. 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 (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 notice of appeal to a special adjudicator under section 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 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 section 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 of 1951 relating to the Status of Refugees read with the 1967 Protocol to the Convention provides in article 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 over-riding 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 Article 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 of the Act 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 of the Act, so far as material, reads :

"Appeals to Special Adjudicator

(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 Ace, 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 section 8. Paragraph 2 of the schedule provides that a person may not bring an appeal on any of the grounds mentioned in subsections (1) to (4) of section 8 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 section 8 of 1993 Act shall deal in the same proceedings with appeals under the Immigration Act 1971.

The Asylum Appeals (Procedure) Rules 1993 (SI 1661/1993) 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 7 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 :

"Summary determination of appeals

(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 :

"Summary determination of appeals

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 Immigration Rules (HC 395) laid before Parliament on 23 May 1994 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 dependents from the United Kingdom (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 section 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 section 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 section 21 of the 1971 Act (applicable to asylum cases by virtue of paragraph 4(2)(d) of Schedule 2 of 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 section 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 section 8. If the appeal is dismissed, then the material or applications will be considered by 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 section 21 of the 1971 Act."

I prefer the applicant's argument on this point. The obligation of the United Kingdom under the 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 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 rule 35 of the 1984 Rules and rule 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 rule 346 of HC 395 only applies where an applicant has left the United Kingdom and returned. Rule 347 of HC 395 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 Department [1994] Imm AR 585, counsel for the Secretary of State accepted (at 588)

"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 Department ex parte Kazmi [1995] Imm A.R. 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 Manvinder Singh v Secretary of State for the Home Department (unreported) 18 July 1995, Carnwath J ; 8 December 1995, Court of Appeal) both the judge (at pages 18 and 19 of the transcript of his judgment) and the Court of Appeal (at pages 9,10,15 and 16 of the transcript of their judgments) 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 Department [1996] 1 All ER 870 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 section 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, of previous unavailability, significance and credibility.

Stuart-Smith LJ considered this matter in Manvinder Singh (above) at pages 14-15 of the transcript of his judgment, 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 or 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."

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 Manvinder Singh (above) at page 23 of the transcript of his judgment 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.

(2) Who is to decide ?

It is plain from rule 328 of HC 395 that all asylum applications will be determined by the Secretary of State in the first instance.

(3) Procedural consequences.

If the Secretary of State decides on a fresh claim to grant asylum, and the claimant is accordingly granted limited leave to enter, no procedural difficulty is likely to arise.

If the Secretary of State recognises a fresh claim as a "claim for asylum", but nonetheless decides that asylum should not be granted, I see no reason why the same consequences should not follow as on refusal of an initial claim. The disappointed claimant can pursue his right of appeal under section 8.

The problematical situation is that in which, as here, the Secretary of State does not recognise a claim as a fresh "claim for asylum" and so declines to make any decision or to take or omit to take any action which would trigger a right of appeal under section 8. Neither party suggested that the asylum-seeker was without redress in this situation, and both accepted that redress could be obtained only by resort to the court. But there agreement ended. The applicant argued that whether or not a fresh "claim for asylum" had been made was a matter of precedent fact to be decided, in case of dispute, by the court. The Secretary of State argued that the question was one for him and his decision, while not immune from challenge, could be challenged only on grounds of irrationality. The cases already referred to contain tentative expressions of opinion both ways.

The judge did not rule on this question, and it is not clear to what extent it was argued before him. It was not raised in the notice of appeal, and not explored in the applicant's skeleton argument in this court. No authority was cited to us. For reasons given in Section V below, I do not regard the answer to the question as determinative of this appeal. Since the issue is one of importance, and also in my opinion of considerable difficulty, I accordingly proffer a tentative answer only.

The role of the court in the immigration field varies, depending on the legislative and administrative context. Where an exercise of administrative power is dependent on the establishment of an objective precedent fact the court will, if called upon to do so in case of dispute, itself rule whether such fact is established to the requisite standard. Thus, for example, where power to detain and remove is dependent on a finding that the detainee is an illegal entrant, one who has entered clandestinely or by fraud and deceit, the court will itself rule whether the evidence is such as to justify that finding : R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74. By contrast, the decision whether an asylum-seeker is a refugee is a question to be determined by the Secretary of State and the immigration appellate authorities, whose determinations are susceptible to challenge only on Wednesbury principles : R v Secretary of State for the Home Department ex parte Bugdaycay [1987] AC 514. I am of opinion, although with some misgivings, that the judgment whether a fresh "claim for asylum" has been made should be assimilated with the latter, and not the former, class of judgment. If the test propounded in (1) above is correct, the answer to the question whether or not a fresh "claim for asylum" has been made will depend not on the finding of any objective fact, nor even on a literal comparison of the earlier and the later claim, but on an exercise of judgment, and this is a field in which the initial judgments are very clearly entrusted to the Secretary of State. In giving effect, for example, to rule 346 of HC 395, it must be for the Secretary of State and not for the court to rule whether the applicant can demonstrate a relevant and substantial change in circumstances since his refusal of an earlier application. In a case such as the present, the judgment is not very different from that which the Secretary of State may make under section 21 of the 1971 Act.

I would accordingly incline to accept the Secretary of State's argument on this point, while observing that decisions reached by him are susceptible to challenge on any Wednesbury ground, of which irrationality is only one.

The applicant accepted before the judge that he could not impugn the Secretary of State's decisions of 12 December 1995 as irrational, and no other ground of Wednesbury challenge was advanced save that considered in Section VI below. If my answer to (3) in Section IV above is correct, therefore, it must follow that (subject to Section VI below) the applicant's appeal must fail.

If, contrary to my tentative view, the court has power to review as an objective precedent fact the issue whether a fresh "claim for asylum" has been made or not, it is necessary for the court to apply the test propounded in (1) in Section IV above to the facts of this case.

In contending that the basis of his November/December 1995 claim was sufficiently different from his March 1995 claim to be properly regarded as a fresh "claim for asylum", the applicant relied on : evidence of his father's disappearance ; additional evidence of civil rights abuses in Nigeria ; new material supplied to the Home Office ; newspaper publicity given to the cases of the applicant and his father ; and a press statement issued by the Nigeria High Commission, critical of supporters of the Onibiyo family who had denigrated the Nigerian Government. The applicant is clearly right when he says that this is material which the special adjudicator had no opportunity to consider, the date of that hearing being the relevant date for present purposes: R v Immigration Appeal Tribunal and Secretary of State for the Home Department ex parte Rajendrakumar (unreported, 11 October 1995, Court of Appeal).

There is, however, no evidence that the applicant's father has been detained, and the Nigeria High Commission has publicly asserted that he has not been detained. More importantly, none of this material addresses the fundamental difficulty which has faced the applicant throughout, which is the extreme unlikelihood (in the absence of compelling evidence to the contrary) that there would be officially-inspired persecution of a young man who had not set foot in Nigeria since the age of 11 and who had not during his long stay in this country pursued any political activity of any kind. It was accepted for the applicant that disappointed asylum-seekers were not as such a social group liable to persecution. It was only if political opinions hostile to the Nigerian Government could be imputed to those seeking asylum that any persecution by the Government could be apprehended. But the applicant's immigration history makes plain that he had been doing his utmost to remain in this country well before any claim to asylum was made, and even then his claim was so threadbare as to be stigmatised as abusive. If the decision rested with this court I would hold, applying the test propounded above, that the applicant made no fresh "claim for asylum" in November/December 1995.

IV

On 9 December 1995 the applicant's mother was served with notice that she was to be removed to Nigeria on 14 December. She claimed asylum on 12 December 1995, relying on the disappearance of her husband, the applicant's father. No decision on her claim has yet been made, but if asylum is refused she will be entitled to appeal under the 1993 Act. The applicant submits that it is irrational to proceed with his removal when the merits of his contentions will be investigated in his mother's case, with the risk of inconsistent decisions in the two cases. The Secretary of State answers that it is entirely rational for him to deal separately with independent claims made at different times by adult members of the same family, as and when such claims are made.

This issue must be approached on the assumption that the applicant applied for asylum in March 1995, was refused and exhausted his right of appeal ; that he has made no fresh "claim for asylum" and has no further right of appeal and that he is in law liable to be removed. Given the high threshold of irrationality, I cannot hold the Secretary of State to be irrational in declining to stay the removal of the applicant until the final outcome of his mother's claim is known.

I would dismiss the applicant's appeal.

LORD JUSTICE ROCK: I agree.

LORD JUSTICE SWINTON THOMAS: I also agree.

ORDER: Appeal dismissed; legal aid taxation of the applicant's costs; leave to appeal to the House of Lords refused.