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| Fresh Claims _ Recent Decisions |
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Error of law in refusal to grant adjournment request
SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 (08 November 2011)
This Court of Appeal case was heard on 8th November 2011. The facts of the case are as follows:
SH is an Afghan national male who arrived in the UK clandestinely in September 2010. He claimed asylum and maintained that he is a minor at risk on return. His age was disputed by the Secretary of State for the Home Department (herein after referred to as the SSHD). SH claims that he is in danger from the Taliban. His asylum claim was rejected and his appeal was dismissed in October 2010. The Immigration Judge concluded that SH was not a minor.
This case dealt with the conclusions reached by the First Tier Tribunal (Immigration and Asylum Chamber). The First Tier Tribunal considered the case under the Asylum and Immigration Tribunal (Fast Track) Procedure Rules 2005 which applied to those who were detained and wished to appeal. At the hearing the judge discovered that there was a dispute as to SH’s age- he claimed to be 15 whereas he was assessed to be 24 years of age by social services. It was discovered that SH had used a different name and date of birth previously when he had applied for a student visa to enter the UK from Pakistan. However, the Refugee Council had age assessed SH and believed him to be a minor. SH’s legal representatives applied for his case to be taken out of fast track and they informed the judge that they were in the process of obtaining an independent expert report as to SH’s age. Their application was subsequently refused. The legal representatives requested an adjournment on the basis that an independent age assessment had been arranged however, this request was denied. The judge said he could not grant a lengthy adjournment request although one was not sought. It was argued that the report could be prepared 2-3 weeks after the hearing date.
The immigration judge went on to consider the merits of the case and rejecting the case as well as SH’s claim to be a minor. The court stated that under the Rules, an adjournment can be granted where there is an identifiable future date of not more than ten days later however; this was not a justification for refusing the adjournment request where good grounds for doing so were raised. The court stated that “A short adjournment would have permitted the appellant to obtain what expert evidence he could to counter the expert evidence on which the Secretary of State relied”.
Permission to appeal was granted and the case was heard by senior immigration judge King. A new report from independent social work assessors reached the conclusion that the appellant was 17 years of age.
The issue in this case was whether the judge had erred in refusing the adjournment and whether that failure made any difference to the case. The judge held that immigration judge Froom had drawn proper conclusions and that his findings were ‘properly open to be made in all the circumstances’ and that SH’s previous application for a student visa undermined his credibility. Judge King also refused to accept the age assessments.
This case proceeded before the Court of Appeal where it was held that immigration judge King had erred in law on the basis that the judge had not applied the correct test which was the Wednesbury test (whether the decision of the first judge to refuse the adjournment was unfair). The judge’s failure to apply the test of fairness was considered to be a ‘significant error’. The second question was whether the report would have made any difference to the outcome of the case. It was impossible to say whether at the stage of the adjournment that the report obtained by SH would make no difference. Immigration judge King was bound to consider whether there was any point in remitting the case for a re hearing at the First Tier Tribunal.
Conclusion
In this case, the court concluded that despite the errors identified, they would have made no difference to the outcome of the case. The Court held that there was there was no rational basis for the appellant’s claims as to his age and therefore, the appeal was dismissed rather than remitted for re-hearing.
November 2011
MH (Algeria), R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 901 (26 July 2011): This was an appeal against the dismissal of a claim for judicial review of the decision which refused to treat the claimant’s application for asylum as a fresh claim under Rule 353 of the Immigration Rules. In order to determine whether there is a fresh claim, the Secretary of State for the Home Department (SSHD) must ask two questions. First, is there new material not already considered and, secondly, is there a realistic prospect of the claim succeeding (Rule 353). A Rule 353 decision by the SSHD is challengeable only on Wednesbury grounds (R (On the application of) MN (Tanzania) v SSHD [2011] EWCA Civ 193). Wednesbury unreasonableness, named after the English case, is a decision so unreasonable that no reasonable authority could have decided it that way.
The appellant was an Algerian national who arrived in the UK in 1998 on a false passport. His claims for asylum were dismissed in 2001 and 2003. By the time of the present appeal, there was no longer any danger from the GIA, the militant Islamic group who the appellant had come under pressure to join. He argued there remained a threat to his safety from the Algerian government, as he had not reported for military service because of pressure from the GIA, and furthermore had used false documents to flee Algeria.
The appellant made a series of alleged fresh claims, which the SSHD refused to treat as such. The most important fresh claim was based on evidence of a witness known to the appellant who had been detained on returning to Algeria for his daughter’s wedding. The witness claimed to have been shown a list of individuals of interest to the authorities. This dossier included information about the appellant. Expert evidence was adduced to show that the security situation in Algeria remained problematic and that the holding of such a dossier by the Algerian authorities was in-keeping with expected practice. As such the appellant would be at risk of mistreatment.
Whether or not this account was credible, if it were found to be believable, an immigration judge would have to find that there was sufficient risk of the appellant being mistreated if returned to Algeria. The SSHD argued in the present case that it was for him/her to decide that the evidence could not reasonably be believed by any immigration judge. The judge disagreed with this point in principle, holding that there could well have been an arguable case that the appellant would be at risk of ill treatment if returned to Algeria, on the basis of his history of hostility to the government and persecution in the past, when taken with the new witness account.
However, on the facts the SSHD was entitled to be ‘sceptical’ about new evidence produced at such a late date, a few days before deportation was due. The appellant had failed to explain why the evidence was produced at the last minute, and this cast doubt on the witness statement relied on. The SSHD’s decision that the new evidence did not constitute a fresh asylum claim was reasonable. The appeal was dismissed.
Permission to work in the UK for asylum seekers
Mohamud, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 573 (Admin) (14 March 2011)
This High Court case considered the issue whether, an applicant who was granted permission to work whilst awaiting a decision on his fresh claim, and who is subsequently refused, is still allowed to work or seek employment.
The claimant arrived in 2006 in the UK and claimed asylum. His application was refused and his appeal was dismissed. The claimant submitted representations advanced as a fresh claim. The claimant sought permission to work in December 2007. The Secretary of State for the Home Department (herein after referred to as the SSHD) refused to treat his representations as a fresh claim on 22nd June 2010. A judicial review claim was lodged against that decision and is still pending. Permission has not yet been granted.
In the interim, the SSHD also refused permission to work (in March 2008). These proceedings commenced in March 2010 and permission was granted in May of last year by way of interim relief. The SSHD contended that any right to work ended on 22nd June 2010.
The Legal Framework
The High Court considered article 11 of the Council Directive 2003/9/EC which is of direct effect and which provides:
“1. Members States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market.
2. If the decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant.
3. Access to the labour market shall not be withdrawn during appeals procedures, where an appeal against a negative decision in a regular procedure has suspensive effect, until such time as a negative decision on the appeal is notified”.
The Directive provisions were transposed into UK law (see paragraph 360 and 360A of the Immigration Rules) which were amended on 9th September 2010 but for applications for permission to work made before that date (as in this case). Paragraph 360 provides that the applicant may apply for permission to work (other than self employed activities)if a decision at first instance had not been taken on the applicants asylum application within one year on the date on which it was recorded and the delay could not be attributed to the applicant.
Paragraph 260A provides that if permission to work is granted, this is only until such time as his application has been finally determined.
Following the Supreme Court decision in the case of ZO (Somalia) a Statement of Changes to the Immigration Rules were laid before Parliament. Essentially, where further submissions which raise asylum grounds are made and the applicant has no permission to work, the relevant provisions in paragraph 360 C-E are to be considered. In particular, Paragraph 360 E provides that once a year has elapsed on a further application through no fault of the applicant, then permission is granted until a decision is made pursuant to paragraph 353 that the representations do not amount to a fresh claim or where the representations do amount to a fresh claim but are rejected and subsequent appeal rights are exhausted.
The representative for the SSHD argued that the decision to refuse on 22nd June 2010 was final and that the pending judicial review claim was not a suspensive. The application was determined in accordance with paragraph 360 and permission to work had thereupon ceased.
Conclusion
This claim ultimately failed because article 11 of the Reception Directive does not require a decision on the further claim; it requires a decision which leads to a non-suspensive appeal or review. The claimant was unsuccessful.
High Court considers State liability and permission to work whilst awaiting a decision on a fresh claim
Negassi, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 386 (Admin) (04 March 2011)
This case was considered in the High Court and judgement was delievered on 4th March. The action was brought by the claimant, a 35 year old Eritrean national. He had initially arrived in the UK in September 2005 using a false passport. He claimed asylum and was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD). His appeal was heard and dismissed. He travelled to Ireland where he also claimed asylum. The Irish authorities returned him to the UK in accordance with the provisions of the Dublin Convention. He then submitted representations advanced as a fresh claim. His representatives lodged judicial review action against the SSHD’s delay in dealing with his application and refusal not to grant employment rights to the claimant whilst he was waiting for a decision. A request for permission to work was said to have been requested in 2008.
The Court considered the Council Directive 2003/9/EC which lays down the minimum standards for the reception of asylum seekers (known as the reception Directive). Article 11 deals with employment rights and provides that member states shall provide for provisions for access to the labour market if no decision is made in respect of the applicants initial application for asylum (and subject to the delay not being attributable to the applicant).
The defendant SSHD argued that the Directive applied only in so far as the claimants initial asylum application and that he could not benefit from the Directive in subsequent applications as he had exhausted his appeal rights.
The claimant’s arguments were essentially twofold:
1. That the blanket prohibition on employment was unlawful and breached his article 8 rights
2. And that the breach was not justified
The claimant argued that he was entitled pecuniary and non pecuniary damages as a result. The arguments raised were based on ECHR authorities namely Niemietz v Germany (1993) 16 EHRR 97 and Sidabras v Lithuania (2006) 42 EHRR 6).
The court did not find for the claimant in this case although it was recognized that the case was a difficult one. The judge did not accept that there had been a breach of the claimant’s article 8 rights to a private and family life and no interference. Damages could only be awarded where a breach of article 8 is determined. The judge commented that even if he had found that there was an article 8 breach, that that breach would have been proportionate in accordance with the law.
In this case it is worth noting that the judge considered the case to be difficult and recognized that in some cases, prohibition could give rise to a claim. Ultimately, in this case however, damages were denied to the claimant.
It is believed that the case may go to the Court of Appeal and therefore a different outcome may be possible. All new updates will be posted.
March 2011
Fresh Claim_ Paragraph 353 _ Expert report
Boulegahalegh, R (on the application of) v Secretary of State for the Home Department [2010]
An Algerian national has failed in his challenge to the decision of the Home Department not to treat a claim for asylum as a fresh claim under paragraph 353 of the Immigration Rules.
The claimant had arrived with his family in 2001 and been refused asylum. His subsequent appeals of this decision were unsuccessful. Further submissions had been made in 2003 and 2005 as fresh claims, but were rejected.
These proceedings followed further submissions in 2007 which had also been rejected.
Paragraph 353 states that:
“"When a Human Rights or Asylum claim has been refused or withdrawn…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 that 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.”
The leading case on this matter is WM (DRC) v The Secretary of State for the Home Department [2006] EWCA Civ 1495. It was stated in this case that the task of the Secretary of State is firstly to consider whether the new material is significantly different from that already submitted. If so, the Secretary of State must then consider whether there is a realistic prospect of success in a further asylum claim.
The claim in 2007 included an expert report which was an update to a report which had been included in the 2003 claim. It was decided that the two reports were almost identical in content, and therefore the 2007 report could not be considered significantly different from previously considered material.
The claim also relied on the then undecided case of AF Algeria CG [2009] UKAIT 00023. which was said to be similar to that of the claimant. However, the judge concluded that the claimant’s situation was significantly different to that of AF. AF had a history of travel which was linked to the spread of terrorism and had been involved in fundamentalist organisations. The claimant’s circumstances in this case were not as exceptional as in AF. Therefore AF added nothing to the claimant’s claim.
The judge therefore concluded that the Secretary of State could not have found that the submissions were significantly different from previous submissions, and therefore there was no fresh claim and no need to consider the prospective success of the submitted material.
Mubarak, R (on the application of) v Secretary of State for the Home Department [2009] EWHC
Alemu, R (on the application of) v Secretary of State for the Home Department [2009] EWHC
Essomba, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 2300 (Admin) (16 September 2009)
Mohan, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1949 (Admin) (28 July 2009)
S, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 2001 (Admin) (16 July 2009)
Secretary of State for the Home Department v QY (China) [2009] EWCA Civ 680 (10 July 2009)
Tariq (aka Tariq Mehmood), R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1390 (Admin) (19 June 2009)
AK (Sri Lanka), R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 447 (17 June 2009)
Nirmalakumaran, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1169 (Admin) (30 April 2009)
Ngirincuti, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 1952 (Admin) (15 July 2008)
WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 (09 November 2006)
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