Law REPORT: 5 novemBER 1997; Home Secretary's decision on fresh application final

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Where an applicant who had been refused leave to enter or remain in the United Kingdom on asylum grounds made a further application on the same grounds based on information not previously available, the Home Secretary's decision whether that constituted a "fresh application" was not subject to appeal to the Immigration Appellate Authority.

R v Secretary of State for the Home Department, ex parte Cakabay; R v Immigration Appellate Authority, ex parte Secretary of State for the Home Department; Queen's Bench Division (Crown Office List) (Lightman J) 22 October 1997

On an application by the Home Secretary for an order of prohibition, to restrain the Immigration Appellate Authority from entertaining an appeal against his refusal to treat representations by Mahmut Cakabay as a fresh application for asylum and against his refusal to grant asylum in response to that "fresh application", and for declaratory and ancillary relief, the court granted the Home Secretary a declaration to the effect that the special adjudicator had no jurisdiction to hear Mr Cakabay's purported appeal, and that the purported notice of appeal had no effect.

Mr Cakabay, a Turkish national, had applied for leave to enter the United Kingdom on asylum grounds, but his application was refused. His solicitors then applied again for asylum on the basis of new information. The Home Secretary determined that those representations did not constitute a fresh claim for asylum and declined to entertain it as such.

Mr Cakabay sent the Home Secretary a purported notice of appeal to a special adjudicator against his decision to refuse to recognise him as a refugee. On receiving the Home Secretary's response that his decison was not appealable, Mr Cakabay served the purported notice of appeal on the Immigration Appellate Authority, and applied for leave to move for judicial review of the Home Secretary's decision to remove him despite his appeal against the refusal of his fresh claim for asylum. The Home Secretary applied for an order of prohibition and declaratory and ancillary relief. Both applications were before the court, but it had been agreed that the Home Secretary's application should be heard first.

Richard Plender QC and Eleanor Grey (Treasury Solicitor) for the Home Secretary; Andrew Nicol QC and Mark Henderson (Howe & Co) for Mr Cakabay.

Mr Justice Lightman said that the two applications for judicial review before the court revolved around a single issue of law of some importance in the field of immigration law relating to asylum.

The issue raised was whether the Home Secretary was the sole judge of the question whether a second application for asylum based on new information was a fresh application (subject only to the supervision of the court in judicial review proceedings). There was no clear binding authority on that question.

In his Lordship's judgment, no appeal lay to the special adjudicator. The jurisdiction of the special adjudicator was confined to cases where there was an appeal from a decision of the Home Secretary to the effect set forth in section 8 of the Asylum and Immigration Appeals Act 1993. Unless and until the Home Secretary accepted the further representations as a fresh application there was no occasion for making any decision falling within section 8.

Parliament had not made any special provision conferring a right of appeal against the decision not to treat further representation as a fresh application similar to the right of appeal against the decisions specified in section 8. It might be inferred that Parliament was concerned that such a right of appeal would create a real risk of serious abuse.

The risk of abuse was obviated by conferring on the Home Secretary the sole and unappealable right to decide what was or was not a fresh application, subject only to a challenge by way of jud- icial review proceedings on Wednesbury grounds.

The Home Secretary would be granted the relief sought.

- Kate O'Hanlon, Barrister