Yolanda Ward v. Secretary of State for the Home Department

YOLANDA WARD
(Applicant)
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
(Respondent)

19 December 1996 Court of Appeal: Simon Brown, Peter Gibson, Hobhouse LJJ Asylum-whether a fresh claim has been made-the acid test, as refined, to be applied by the Secretary of State-whether in the instant case the conclusion by the Secretary of State that there was no fresh claim was unreasonable. Asylum and Immigration Appeals Act 1993 s.8. Renewed application for leave to move for judicial review following refusal by Ognall J. The applicant was a citizen of Peru. Her application for asylum was refused by the Secretary of State. She appealed but withdrew her appeal before the hearing and made an application for leave to remain on the basis of a marriage contracted after the refusal of asylum by the Secretary of State. Her application on the basis of marriage was refused. An application was then again made for asylum. Further details of the basis of the claim were put to the Secretary of State. He concluded that they added nothing material to the earlier claim and declined to treat the application as a fresh claim giving a right, on refusal, to an appeal to a special adjudicator. Cousel argued that the decision of the Secretary of State had been Wednesbury unreasonable. The court summarised the test to be applied by the Secretary of State in determining whether a fresh claim has been made.

Held:

1. The acid test to be applied by the Secretary of State to determine whether a fresh claim had been made was laid down in Onibiyo and refined in one particular in Ravichandran (No.2).

2. It was for the Secretary of State to decide if a fresh claim had been made and his decision could only be challenged on Wednesbury principles.

3. Applying those principles there was nothing unreasonable in the Secretary of State's decision.

R de Mello for the applicant

Miss L Giovannetti for the respondent

Cases referred to in the judgment:

Ladd v Marshall [1954] 1 WLR 1489: [1954] 3 All ER 745. Ademola Onibivo v Secretary of State for the Home Department [1996] Imm AR 370. R¨v Secretary of State for the Home Department ex parte Senathirajah Ravichandran (No.2) [1996] Imm AR 418. R v Secretary of State for the Home Department ex parte Yolanda Ward (unreported, QBD, 31 October 1996).

SIMON BROWN LJ:

The applicant is a 23 year old citizen of Peru. By this renewed application she seeks leave to move for judicial review of the Secretary of State's decision by letter of 29 July 1996 refusing her renewed claim for asylum and, no less important to the present challenge, refusing to accept that it constituted a fresh claim such that on the ruling authorities its refusal attracts a right of appeal to the special adjudicator under section 8 of the Asylum and Immigration Appeals Act 1993. Before turning to the facts of the case it is convenient, first, to summarise very shortly the principles applicable to the present case as established by this court in Onibiyo v Secretary of State for Home Department [1996] Imm AR 370 and, as in one particular, refined by Dyson J a little later in R v Secretary of State for Home Department ex parte Ravichandran (No.2) [1996] Imm AR 418. The touchstone of what constitutes a fresh claim is to be found in this passage in the judgment of Sir Thomas Bingham MR. in Onibiyo at page 381:

"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."

The reference there to "excluding the material on which the claimant could reasonably have been expected to rely in the earlier claim" is a reference back to a sentence a little earlier in the judgment where Sir Thomas Bingham said this:

"If the fresh claim depended on new evidence then it had to satisfy tests, analogous to Ladd v Marshall of the previous unavailability, significance, and credibility."

The refinement to which I made reference in Ravichandran (No.2) appears at page 431 in this sentence-a sentence wholly consistent with what Sir Thomas Bingham had earlier said:

". . .a later claim may be a fresh claim if it is supported by convincing fresh evidence of the same persecution said to be feared as was alleged in support of the earlier claim."

A little later:

"… an intensification in the degree of persecution from the same source is capable of giving rise to a fresh claim."

The final and important principle in play for present purposes is that the decision as to whether or not fresh representations amount to or give rise to a fresh asylum claim is one for the Secretary of State, susceptible to challenge only on a conventional Wednesbury basis. Now to the facts. The applicant arrived in this country on 22 December 1992 seeking leave to enter as a visitor. This was refused but she was given temporary admission for 20 days. Toward the end of that period she claimed asylum. On 2 February 1993 she was interviewed in connection with that claim. The basis of her claim was stated thus:

"My life is in danger in Peru. The Sendero Lurninoso wanted me to join the group, and warned me about what would happen if I didn't. The Sendero Luminoso are after the young people in Peru to join the group. Ayacucho is a very dangerous place. I have had face to face threats and phone threats. My brother disappeared 5 years ago. We have had no news of him. In 1988 1 was taken by soldiers and held for 3-4 days because they thought I was involved with the Sendero Luminoso. I was given electrical shocks before being released for lack of proof of connection with the Sendero Luminoso. I tried to get a Police denunciation but couldn't get one. I didn't get anything from my doctor either. This happened in January 1988, but I don't remember the exact date."

That application was refused on 30 June 1994 in a detailed letter from the Asylum Division of the Home Office explaining precisely why it had not been accepted that the applicant was entitled to refugee status. The Secretary of State indicated his reasons for doubting whether the applicant had been genuinely threatened, as she had suggested. He referred to the long delay in leaving Peru, and observed that she had made no effort to go into hiding and that she had delayed even after obtaining a passport. There then appears this important sentence:

"The Secretary of State considered that the problems you had faced, even if true, amounted to nothing more than the sort of random difficulties faced by many thousands of people in Peru."

The following month the applicant gave notice of appeal. In May of the following year she met a citizen of this country, Mr. Ward, with whom she became increasingly friendly and, in the event, she married him on 3 January 1996. That, as it happens, was just five days before the hearing date which had been fixed for her asylum appeal. Meantime in December 1995, in connection with her proposed appeal, she made a very detailed statement to her advisers with regard to her asylum claim. It is a statement running to six closely-typed pages and it very considerably elaborates the overall circumstances in which she claimed to have felt threatened in Peru. It did not, however, greatly elaborate the physical details of her illtreatment during the three or four days detention in January 1988 to which she had initially referred. The electrical shocks of which she had earlier spoken were now said to have been administered to her breasts, but what Mr. de Mello on her behalf submits today was the critical addition to her story was her account of having been raped-something of which she had previously said nothing. Even that, however, is put only in these brief terms:

"They stripped me. They said 'Tell us the truth and we'll let you go.' One caught my hands and they raped me. I lost consciousness. I don't know how long for. I woke up. It was dark."

Between her marriage on 3 January and the appointed hearing date for her appeal on 8 January, the applicant telephoned to withdraw the asylum appeal. On 15 January the Home Office wrote to the Immigration Advisory Service, who were then acting for the applicant, noting that she intended to make an application for leave to remain on the basis of her marriage and asking them (to enable such revised application to go ahead) to provide written confirmation. On 22 February the Advisory Service wrote a detailed letter to the Home Office seeking leave for her to remain on the basis of her marriage to Mr. Ward, a British citizen. In that letter it was said:

Ms Huacachi [the applicant] made no mention in her asylum questionnaire of the events which led to her decision to flee her home village. It is clear from having spoken to her that this was because of an initial wish not to speak of them.

…

The reason behind Miss Huacachi's decision to withdraw her asylum claim is that her marriage has become the dominant reason for her wishing to remain in the United Kingdom."

On 23 March 1996 the application to stay on the basis of marriage was refused. The letter of refusal is not before us, but no doubt it referred, amongst other things, to the lack of any appropriate entry clearance visa for the purpose. Following that refusal further efforts were made to seek leave for the applicant to remain on the basis of an entitlement to asylum. Miss Joan Ruddock MP wrote in that connection to the parliamentary Under-Secretary of State on I April 1996. The letter said that the earlier asylum appeal had been withdrawn-

". . . for a particular reason, which until now she has not been prepared to explain or make known. When she married her husband, she did not tell him that she had been raped by soldiers in Peru as this was something which caused her great shame, and was something she could not talk easily about. "

That letter enclosed the very detailed statement taken in December elaborating her asylum claim. I come finally to the decision letter of 29 July refusing the renewed re representations. The material part reads as follows:

"The additional representations have now been examined but the Secretary of State does not consider that they add substantively to Ms Huacachi's original asylum claim and therefore he can find no reason to reverse his decision of 30 June 1994 to refuse the application. He remains of the view that the fear to return to Peru claimed by Ms Huacachi relates directly to indiscriminate violent criminality and as such does not constitute persecution as defined by the 1951 United Nations Convention relating to the Status of Refugees.

I am sorry to have to send what I know will be a disappointing reply."

Paragraph 5 of Mr. de Mello's skeleton argument reads thus:

"The simple submission the Applicant makes is that her further representation/claim for asylum should have been considered and treated as a fresh claim for asylum and that it was unreasonable for the Secretary of State not to treat such later claim as a fresh claim. If this is right and if her claim for asylum was refused, then it would lead to a further right of appeal under section 8(1) of the 1993 Act."

He elaborates that written submission today by submitting that the letter of 29 July reveals that the Secretary of State failed to apply the acid test laid down by Sir Thomas Bingham in Onibivo. I confess to having had some difficulty in following that submission. It seems to me necessarily implicit in the letter that the Secretary of State was indeed indicating the clear view that, albeit the applicant had, so to speak , intensified her account of ill-treatment in the hands of Peruvian soldiers during her detention in January 1988, she had said nothing at all which impinged upon the central ground upon which her earlier claim had been refused, namely, as it had originally been put in the refusal letter of 30 June 1994:

. . . that the problems you had faced, even if true, amounted to nothing more than the sort of random difficulties faced by many thousands of people in Peru."

True that was said then in the context of a complaint about electric shocks rather than rape, but it does not affect the essential nature of the claim which, in the final letter, is described as one which "relates directly to indiscriminate violent criminality and as such does not constitute persecution as defined in the Convention." Even, therefore, if one sets aside entirely the difficulties which could very well be thought to arise here with regard to satisfying all three of the Ladd v Marshall tests; even, therefore, if one excludes none of the material now put forward as "material on which the claimant could reasonably have been expected to rely in the earlier claim" there is, in my judgment, no basis for doubting that the Secretary of State properly directed himself in accordance with the acid test, and no basis either for suggesting that his conclusion, upon the application of the test, was Wednesbury unreasonable. On the contrary, it seems to me entirely logical and perhaps even inevitable. In those circumstances it is not necessary to. address Mr. de Mello's second argument which would arise only were his first argument to succeed, and which is directed towards questioning the correctness of the view expressed by Ognall J on 31 October 1996 when he refused leave to move at first instance, namely that the court in its discretion should not grant leave given the inevitability that any substantive application for asylum must itself inevitably fail before the special adjudicator equally as before the Secretary of State. For those reasons I would refuse this renewed application.

PETER GIBSON LJ:

I agree.

HOBHOUSE LJ:

I agree.

DISPOSITION

Application refused

Solicitors:

Pullig & Co, London, EC4; Treasury Solicitor

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