QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON MR JUSTICE FOSKETT
| The Queen on the application of (1) ZA (Nigeria)
(2) SM (Congo)
|- and -
|Secretary of State for the Home Department
Secretary of State for the Home Department
Miss N Nnamani (instructed by Nathaniel & Co for the Claimant
(1) and (2) Mr D Blundell (instructed by the Treasury Solicitor) for the Respondents
Hearing date: 16th March 2010
Crown Copyright ©
This is the judgment of the Court
"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  1 WLR 1489, of previous unavailability, significance and credibility."
Sir Thomas Bingham then quoted and agreed with a passage from the judgment of Stuart-Smith LJ in R v Secretary of State ex parte Manvinder Singh  Imm AR 41. He was content with the formulation that a change in the character of the application was required, provided that it was 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.
"When a human rights or an asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material which has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection."
"In the case of a repetitious claim no more is required to be done: the first decision has ensured that the United Kingdom has complied with its obligations under the Convention. Section 6 of the 1993 Act creates no inhibition on the claimant's removal: the Secretary of State has on the occasion of his decision on the first claim decided the repetitious claim. So far as the decision on the claimant's repetitious application for leave to enter is concerned, the claimant will be told that leave has already been refused and that there is no need for any new decision."
It was submitted on behalf of the claimant that categorisation by the Secretary of Sate of a claim as repetitious rather than fresh was in substance a refusal of leave to enter. Of this submission, Schiemann LJ said at page 182:
"I accept that the substantive effect of categorising the claim as repetitious is that the claimant is left in the position that he has no leave to enter. That was the position in which he found himself as a result of the decision on his first claim and the negative results of the appellate and judicial review processes in relation to that first claim. This fact however seems to me of no help one way or the other in deciding whether Parliament has given a right of appeal on the merits to one who is disadvantaged by the Secretary of State's categorisation decision."
He went on to hold at page 185 that, potentially severe though the consequences might be, Parliament had not provided for an appeal on the merits against a categorisation decision. A challenge to the legality of the decision was sufficient and there was no need to create also the possibility of an appeal on the merits of the decision.
" it was necessary to provide a means for determining whether, if the Secretary of State was not persuaded to alter the decision that had already been taken, the further submissions amounted to a fresh claim. If they did not, there would be no reason for re-opening the matter. But if they did amount to a fresh claim, they would have to be dealt with as such and the right of appeal under Part 5 of the 2002 Act would then have to be made available. Rule 353 provides a mean of achieving this by franking the further material as requiring a fresh determination in accordance with the procedures that the statutes lay down."
Mr Blundell points out that this passage is to substantially the same effect as the passages from Cakabay to which we have referred. A decision under rule 353 that further submissions do not amount to a fresh claim does not by itself generate, and does not need to generate, an appealable immigration decision.
"A claimant may seek to adduce further material in support of his claims which may or may not constitute a significant addition to those which he had earlier submitted without success. To meet this situation rule 353 was made This is relatively straight forward to operate where the Secretary of State has not given a certificate under section 94, its object being to obviate the necessity for her to reconsider every further submission as a fresh claim attracting the full panoply of the appeal process."
" that the 2002 Act contained a range of powers which enabled the Secretary of State or an immigration officer to deal with the problem of repeat claims, including, under sections 94 and 96, the power to issue certificates preventing a person raising an asylum or immigration claim which was clearly unfounded or raising an issue which ought to have been dealt with on an earlier appeal. Since, when read as a whole, the carefully interlocking provisions of the 2002 Act set out a complete code for dealing with repeat claims, there was no need to read words into the Act so as to exclude further claims which had not been held under rule 353 of the Immigration Rules to be fresh claims. Rejected claims which were not certified under sections 94 or 96 should be allowed to proceed to appeal in-country under sections 82 and 92, whether or not they were accepted by the Secretary of State as fresh claims."
Both Cakabay and ZT (Kosovo) are referred to in the judgments without any suggestion that they were wrongly decided, although on the face of it, as we think, BA (Nigeria) and ZT (Kosovo) do not stand obviously together as to the purpose and effect of rule 353.
"There is no doubt, as I indicated in ZT (Kosovo) v Secretary of State for the Home Department  1 WLR 348, para 33, that rule 353 was drafted on the assumption that a claimant who made further submissions would be at risk of being removed or required to leave immediately if he does not have a "fresh claim". That was indeed that case when this rule was originally drafted, as there was no equivalent of section 92(4) of the 2002 Act. But Mr Hussain's analysis has persuaded me that the legislative scheme that Parliament has now put in place does not have that effect. Its carefully interlocking provisions, when read as a whole, set out the complete code for dealing with repeat claims. Rule 353, as presently drafted, has no part to play in the legislative scheme."
The individual judicial review claims
"There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgment will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material
The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second ... the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution ...."
In relation to how the court, when reviewing a decision of the Secretary of State as to whether a fresh claim exists, should approach the matter, it was said that the questions to be asked and answered were these:
"First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."
"Must the court substitute its own view of whether the claim has no realistic prospect of success, for that of the Secretary of State or is the approach the now familiar one of judicial review that involves the anxious scrutiny that is required where human rights are in issue? [The Claimant] is seeking judicial review and thus I would accept that, as a matter of principle, the latter is the correct approach. I consider, however, that in a case such as this, either approach involves the same mental process."
Where there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational.
"In an article 8 case ... the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8."
"Is the interference proportionate to the permissible aim? In many cases, refusal or removal does not mean that the family is to be split up indefinitely. The policy is that if there is a procedural requirement (under the Immigration Rules, extra-statutory policies or concessions) requiring a person to leave the UK and make an application for entry clearance from outside the UK, such a person should return home to make an entry clearance application from there. In such a case, any interference would only be considered temporary (and therefore more likely to be proportionate). A person who claims that he will not qualify for entry clearance under the rules is not in any better position than a person who does qualify under the ruleshe is still expected to apply for entry clearance in the usual way, as the entry clearance officer will consider article 8 claims in addition to applications under the rules. See Ekinci In addition, it may be possible for the family to accompany the claimant home while he makes his entry clearance application, in which case there will be no interference at all. For example, where a claimant is seeking to remain here on the basis of his marriage to a person settled in the UK, the policy is that they should return home to seek entry clearance to come here as a spouse under the relevant immigration rule. Where the spouse can accompany the claimant home while he makes his application, there will be no interference. Where this is not possible, the separation will only be temporary. The fact that the interference is only for a limited period of time is a factor that is likely to weigh heavily in the assessment of proportionality."
In relation to that policy Lord Brown said this:
" ... it seems to me that only comparatively rarely, certainly in family cases involving children, should an article 8 appeal be dismissed on the basis that it would be proportionate and more appropriate for the appellant to apply for leave from abroad. Besides the considerations already mentioned, it should be borne in mind that the 1999 Act introduced one-stop appeals. The article 8 policy instruction is not easily reconcilable with the new streamlined approach. Where a single appeal combines (as often it does) claims both for asylum and for leave to remain under article 3 or article 8, the appellate authorities would necessarily have to dispose substantively of the asylum and article 3 claims. Suppose that these fail. Should the article 8 claim then be dismissed so that it can be advanced abroad, with the prospect of a later, second section 65 appeal if the claim fails before the entry clearance officer (with the disadvantage of the appellant then being out of the country)? Better surely that in most cases the article 8 claim be decided once and for all at the initial stage. If it is well founded, leave should be granted. If not, it should be refused."
"20. The appellant submits that the legislation allows, indeed requires, the appellate authorities, in determining whether the appellant's article 8 rights have been breached, to take into account the effect of his proposed removal upon all the members of his family unit. Together these members enjoy a single family life and whether or not the removal would interfere disproportionately with it has to be looked at by reference to the family unit as a whole and the impact of removal upon each member. If overall the removal would be disproportionate, all affected family members are to be regarded as victims.
43. ... Once it is recognised that ..."there is only one family life", and that, assuming the appellant's proposed removal would be disproportionate looking at the family unit as a whole, then each affected family member is to be regarded as a victim, section 65 seems comfortably to accommodate the wider construction.
44. I would accordingly adopt the wider construction to section 65 contended for by the appellant ...."
"Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires."
"17. On the basis of [his partner's] account, it appears that she and your client had been living together for nearly 4 months at the time of his detention, following the development of their relationship over the previous year and some limited previous acquaintance. The Secretary of State therefore accepts that your client and [his partner] have established family life together. Clearly your client's removal to the DRC would interfere with that family life, since [she] is a refugee from that country and could not be expected to accompany him. The question that arises is whether the family life between them, whether viewed from the perspective of your client or [his partner], is such that your client's removal would amount to a disproportionate interference with the family life of either or both.
19. The Secretary of State has decided that, even though your client's circumstances are such that "the life of the family cannot reasonably be expected to be enjoyed elsewhere," your client's removal would not amount to a disproportionate interference with his family life. The relationship on which he relies was formed at a time when his immigration status was uncertain, and that uncertainty has pervaded its existence. The relationship was formed at a time when your client had exhausted his rights of appeal against the refusal of his asylum claim, and so was well aware that he had no lawful right to be in the UK. As an asylum seeker herself, [she] would have been aware of the precariousness of your client's situation from the beginning. The relationship has been 'serious' for less than 18 months, and the couple were living together as husband and wife for less than 4 months. It is therefore relatively short-lived. They are not lawfully married and they have no children between them. The Judgment of the House of Lords in Beoku-Betts does not assist your client as these factors are equally relevant whether your client's family life is viewed from his own perspective or that of [his partner]: their family life is not such that it weighs heavily in favour of setting aside the public interest in your client's removal and allowing him to stay.
20. On the other hand, the public interest in the removal of foreign nationals who do not qualify to remain in the UK but refuses to leave of their own accord is well established. Weight is added to the public interest in this case because your client gained entry to the UK on the basis of an asylum claim that was found by the AIT to have been a fabrication. It is important to the integrity of the protection system that those who fabricate claims should not be allowed to use them as a stepping stone to status. Your client's appeal rights were exhausted in January 2008. Knowing that he had no basis of stay he should have left the UK, but instead he embarked on the relationship on which he now relies.
22. For all these reasons, having set the factors weighing against your client's removal alongside those weighing in favour, the Secretary of State takes the view that he has not established that his removal would amount to a disproportionate interference with his right to family life, or with that of [his partner], even though the result may well be that they cannot pursue their family life together. As you rightly indicate in your grounds for judicial review, in the case of Chikwamba the House of Lords was concerned with the Secretary of State's then policy of requiring Article 8 applicants in the UK to go abroad and make their applications to an entry clearance officer, instead of having them determined in the UK. By contrast, your client's application has been determined in the UK. The Secretary of State does not say that he should instead make an application for entry clearance and therefore Chikwamba does not apply. Even in the event that your client were to go abroad and apply for entry clearance, the grant of entry clearance would be by no means assured given your client's failed asylum claim, the findings of deception made against him on appeal, the fact that he has not voluntarily left the UK, and the findings made above in respect of his private and family life, and so Chikwamba would not assist your client in any event."
"a. your client's poor immigration history.
b. his failure to provide detailed evidence himself or from any friends to establish his relationship with [his partner].
c. his failure to provide any independent evidence including bills, council tax or bank statements, letters and photographs confirming your client's relationship and that has been cohabiting with [his partner] since 2005 as claimed.
d. despite claiming that he has been cohabiting with [her] since 2005 his failure to make submissions in relation to Article 8 until his lodged his judicial review proceedings. Whilst his human rights submissions made under the cover of a letter dated 23 September 2008 make a bland reference to establishing a family life, no details are provided and [his partner] is not mentioned despite the fact that he claims to have been cohabiting with her for three years at that point.
e. the letter from [his partner] was not provided until the renewal grounds were served and after several sets of removal directions had been served on your client and the summary grounds of defence were lodged which noted the lack of evidence that had been forthcoming from her. No explanation was provided for the delay in providing the letter.
f. the lack of evidence about the nature of your client's contact and relationship with his child and the other children of [his partner] including the lack of evidence to indicate why the relationship could not be continued in or from Nigeria by modern means of communication.
g. your client's blatant disregard for the Immigration Rules (which you yourselves acknowledge in your grounds of renewal dated 18 December 2009)."
"22. Your client's case has also been considered in the light of the judgment in VW Uganda v SSHD  EWCA Civ 5. The judgment in VW Uganda relates to the consideration of the applicability of the "insurmountable obstacles" test when dealing with the issue of proportionality. More specifically, the judgment considered whether a person can point to hardship or difficulties of a nature and degree as to make it unreasonable to expect his or her family to join them in the country to which they are being removed. The Court concluded in VW Uganda that what must be involved is more than a mere degree of hardship and the matter is not simply one of "choice or convenience". In her letter dated 17 December 2009 [the partner] provides no reason for any hardship or unreasonableness in returning with your client to Nigeria to continue their family life. It is noted that [she] has 3 other children with a previous partner and that they are aged 17, 15 and 12. Although it is understandable that your client's partner would prefer that your client remain in the UK and would prefer not to relocate to Nigeria with your client's son and her 3 other children, it would alternatively be open for your client to return to Nigeria to seek entry clearance to return to the UK as [her] partner.
23. Your client is an immigration offender who was notified of his liability to removal in May 2003 and continues to have no lawful basis of stay in this country. Although it is accepted that your client may have established a family life in the United Kingdom, I am satisfied that the decision to proceed with his removal would not breach Article 8 of the European Convention on Human Rights."
"24. It is noted that your client claims to have been in the United Kingdom since May 2003. It is accepted that during the time he has been in the United Kingdom that he may have established a private life, however it is considered that the private life had been established in the knowledge that he had no legal basis to remain in the United Kingdom. In order to protect the wider interests and rights of the public, it is vital to maintain effective immigration control. In pursuit of that claim and having weighed up your client's interests, it is believed that any interference with his family and/or private life, would be a legitimate, necessary and proportionate response and in accordance with the law.
27. It is considered that your client is a 38 year old male who has been in the United Kingdom for 7 years and 8 months without lawful and legitimate leave. Your client claims to have arrived in the United Kingdom in April 2002, but claimed asylum on 28 May 2003 only after he was arrested and detained by police for working illegally. After his appeal rights were deemed to be exhausted he absconded from reporting for 4½ years and only came to light in September 2009 when he made further submissions for leave to remain in the United Kingdom on human rights grounds. Although it is accepted that your client is the father of [a son] born 11 May 2009, it is not considered to be disproportionate in light of all the circumstances to remove your client from the United Kingdom in order for him to seek entry clearance to return to the United Kingdom as the partner of [his partner]. After careful consideration, it is concluded that there are no compelling circumstances to justify allowing your client to remain in the United Kingdom and therefore it is considered that your client's removal from the United Kingdom is entirely lawful and proportionate."