England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
(MR JUSTICE HIDDEN)

		Royal Courts of Justice Strand London WC2A 2LL Thursday 8 February 2001

1. LORD JUSTICE SIMON BROWN: The applicant is a 29-year old Indian Sikh. He left India in 1991, initially for Moscow and then to the Ukraine. He left India on his own passport about a year after his final arrest, but it now appears common ground that during such arrest he had been beaten and tortured by the Punjabi police and has since suffered severe and chronic pain as well as psychological effects.
2. The applicant says he had been in the Bittu faction of the AISSF (All India Sikh Students Federation), a proscribed militant group responsible for some terrorism. He arrived illegally in this country on 5 April 1995. Having been found shortly afterwards working on a building site, he applied for asylum on the basis that he was subject to persecution as a Sikh activist.
3. On 30 September 1995 that application was refused by the Secretary of State. The applicant appealed to a special adjudicator; that appeal was dismissed on 29 October 1996. It is common ground that it was a most unsatisfactory hearing due to the incompetence of the applicant's representation at the time, not least in not calling him to give evidence. On 4 December 1996 the IAT refused leave to appeal. At that juncture the applicant went to ground.
4. On 17 July 1997 he was traced and again applied for asylum. He was detained at Campsfield House. On 3 December 1997, the Secretary of State said he was not prepared to regard it as a fresh application and he refused to reverse his earlier decision. That refusal was maintained in a further letter on 18 December 1997. On 23 February 1998 the applicant was released on temporary admission. On 11 March 1998 the Secretary of State yet again refused to change his mind.
5. There was then a challenge directed to the Secretary of State's refusal to treat the application as a fresh application for asylum which would have triggered fresh appeal rights. The matter came before Hidden J on 23 March 1998. In the course of a very short hearing it appears to have been conceded that the challenge could not succeed, in part, apparently, because of the House of Lords' decision in R v Home Secretary ex parte Al Mehdawi (1990) 1 AC 876. There was no substantive argument or judgment, rather the application was dismissed effectively by consent on the footing that it would be renewed before this court. It cannot be pretended that that was a satisfactory process, least of all given that, if the applicant was barred by the House of Lords' decision in Al Mehdawi and before Hidden J, so, too, he would be in this court.
6. The history at that point takes a pronounced turn at that point because the Secretary of State then agreed to refer the case to a special adjudicator under the provisions of section 21 of the Immigration Act 1971. Not surprisingly, he invited the applicant's solicitors in those circumstances to discontinue their challenge. As was pointed out in a letter from the Treasury Solicitor of 16 July 1968:

"The additional material which has been put forward in your client's case will now be considered by an Adjudicator who will report his opinion on the material to the Secretary of State for consideration. You will have a remedy in judicial review should you consider the Secretary of State to err in any subsequent decision."

7. The applicant's solicitors were not persuaded and the outstanding application for permission to move for judicial review before this court was simply adjourned.
8. On 8 September 1998 the section 21 reference was duly made. On 3 August 1999 the matter came before a fresh special adjudicator, Mrs Drew. She declined to allow the applicant to give evidence as she thought that the documents in the case did not warrant it. Her conclusion was:

"I do not accept that his case would be furthered if he is now to be given an opportunity to put forward his case bearing in mind the conclusion I have reached on the value to his case of the documentary evidence, the medical and other reports now produced.

In conclusion therefore it is my opinion that the new evidence produced to support this appellant's asylum application and appeal which is the subject of this reference does not suffice to render the decision reached previously by the Special Adjudicator not to be in accordance with the law or the immigration rules."

9. There was at that stage an ill-starred venture to appeal that advisory opinion to the IAT. Somewhat surprisingly, to my mind, the IAT on 1 November 1999 duly granted leave to appeal. On 28 March 2000, however, they dismissed the appeal, clearly correctly, on the footing that they had no jurisdiction to entertain it. 0n 26 September 2000 there then followed a short letter from the Home Secretary reaffirming his long standing refusal of asylum and refusal to recognise that any fresh asylum claim had been made after the initial appeals in late 1996. That letter said:

"The Secretary of State is fully satisfied with the contents of the report prepared by Mrs Drew giving her advisory opinion in response to your previous request for reference under Section 21 of the Immigration Act 1971. He does not therefore believe that your client's case would benefit from further consideration by the Adjudicator under Section 21 (which consideration would be advisory in status in any event) and does not propose to make such a reference.

In view of the above, the Secretary of State's decision of 4 September 1995 [a mistake for 30 September 1995] to refuse Mr Singh asylum is therefore maintained. However in view of Mr Singh's outstanding judicial review application no enforcement action will be taken until this matter has been resolved."

10. The renewed application for leave to move for judicial review before this court purports to embrace not only the original challenge to the series of decisions reached prior to the brief appearance before Hidden J on 23 March 1998 but, in addition, a challenge to the Secretary of State's most recent decision of 26 September 2000.
11. As I indicated in the course of today's hearing, I have not the least doubt that this challenge, in so far as it seeks to be maintained against what are now the historic decisions in 1997 and 1998, is misconceived. Time has moved on and the critical present decision, and to my mind the only one that could conceivably be the subject of challenge, is that of 26 September 2000. If the earlier decisions were vulnerable to challenge on the footing that the material before the Secretary of State obliged him to regard this as a fresh asylum claim, a fortiori, the later decision would be vulnerable to similar challenge. If there were to be a challenge to the most recent decision, it would be that the Secretary of State was simply not entitled to accept the special adjudicator's advisory opinion, which was to the dual effect that the applicant was not entitled to refugee status and, equally, that his application for asylum was not properly to be regarded as a fresh application materially different from his original application. Any such challenge to the decision of 26 September 2000 would fall to be made not to this court, parasitically upon the adjourned renewed application in respect of the earlier decisions, but rather as a de novo application to the Administrative Court.
12. In my judgment, however, even that is not now an appropriate course to take given one further critical consideration. As I understand the position - and Mr Ashley Underwood, for the respondents, encourages me in this belief - there is now, in all probability, available to this applicant a section 65 appeal in regard to the Secretary of State's continuing intention to remove him despite a contention that such removal would violate articles 2 and/or 3 of the European Convention on Human Rights. Such a contention has been a consistent theme of the applicant's attempts to challenge the Secretary of State's attitude throughout. He contends that, were he to be returned, he would be at real risk of being tortured again as he was in the past. He further contends that, having regard to the psychological state he is in, it would be inhuman to return him in the first place.
13. Those fresh appeal rights, available since the Human Rights Act took effect on 2 October 2000, realistically subsume any rights that he may have to establish to have his claim treated as a fresh asylum claim and then to succeed upon it. I propose, accordingly, to dismiss this renewed application and to indicate that there should be no further application made in this court or at first instance with regard to asylum. Rather the applicant should exercise his section 65 rights to obtain a fresh and full hearing before a special adjudicator.
14. If by any chance it proves that there is no such right of appeal still available to him with regard to the article 2 and article 3 issues, then, but only then, should the applicant seek to resurrect this matter. In those circumstances he would need to seek leave out of time, but perhaps excusably out of time, to challenge the decision of 26 September 2000, which I regard as the only remaining potentially challengeable decision, based as it was on the special adjudicator's advisory opinion that the applicant's claim for asylum and his contention that this was a fresh asylum application should be rejected.
15. For those reasons, I would dismiss the present application in its entirety.
Order: Application dismissed. Legal assessment of applicant's costs.