R v. Secretary of State for the Home Department, Ex parte Senathirajah Ravichandran and Iyatharai Sandralinghan (No. 2)

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte SENATHIRAJAH RAVICHANDRAN (No 2)
R v SECRETARY OF STATE FOR THE HOME DEPARTMENT
ex parte IYATHARAI SANDRALINGHAM (No 2)

CO/544/96

CO/545/96

19 April 1996

Queen's Bench Division: Dyson J

Political asylum-fresh application-Secretary of State concluded no fresh application made-whether that decision gave rise to an appeal to the appellate authorities-whether it was for the Secretary of State to decide whether a fresh claim had been made-whether the Secretary of State had applied the correct test in the instant cases-the basis on which the Secretary of State's decision might be challenged. Asylum and Immigration Appeals Act 1993 s. 8, sch. 2 para. 2: HC 395 paras. 327, 328, 332, 346.

Exceptional leave-recommendation by special adjudicator-Secretary of State decided not to follow the recommendation-whether decision Wednesbury unreasonable.

The applicants for judicial review were citizens of Sri Lanka. They had been refused asylum by the Secretary of State: their appeals had been dismissed: on the basis that conditions in Sri Lanka had deteriorated, their representatives made further applications for asylum. The Secretary of State concluded that the submissions by the representatives did not constitute fresh applications, giving rise to further rights of appeal,

Before the court it was argued that any refusal by the Secretary of State would give rise to an appeal under the 1993 Act. The court considered that issue, the question by whom it was to be decided whether a fresh application had been made and, following the Court of Appeal guidance, in Onibiyo, whether in the instant cases the proper test had been applied.

In the case of Sandralingham, the special adjudicator, in dismissing his appeal, recommended that the appellant be granted exceptional leave to remain. The Secretary of State refused to follow that recommendation. Counsel argued that refusal was Wednesbury unreasonable.

Held

1. A decision by the Secretary of State that further representations did not constitute a fresh application for asylum, did not give rise to a right of appeal to the appellate authorities under section 8 of the 1993 Act.

2. It was for the Secretary of State to decide whether a fresh application had been made. That decision could only be challenged as being Wednesbury unreasonable: the court would not enquire into the precedent facts.

3. In the instant cases the Secretary of State had applied the wrong test, following the Court of Appeal's conclusions in Onibiyo, in determining whether fresh applications had been made.

4. The refusal of the Secretary of State to follow the recommendation of the special adjudicator had not been Wednesbury unreasonable.

I Lewis for the applicants

R Jay for the respondent

Cases referred to in the judgment:

R v Secretary of State for the Home Department ex parte Zamir [1980] AC 930: [1979-80] Imm. AR. 203.

Khawaja v Secretary of State for the Home Department [1984] AC 74: [1982] Imm AR 139.

Bugdaycay and ors v Secretary of State for the Home Department [1987] Imm AR 250.

R v Immigration Appeal Tribunal and an Immigration Appeal Adjudicator ex parte Secretary of State for the Home Department [1991] 1 WLR 1126: [1990] Imm AR 166.

R v Secretary of State for the Home Department ex parte Manvinder Singh [1996] Imm. AR 41.

Ademola Onibiyo v Secretary of State for the Home Department [1996] Imm AR 370.

Nitsingham (unreported) (HX/72344/94).

Janakan (unreported) (HX/73731/95).

DYSON J: lyathurai Sandralingam was born on 20 November 1969 in the Jaffna region of Sri Lanka. In 1985, he was arrested and detained by the Sri Lankan security forces. He was held for sixteen days, beaten and interrogated. In mid-1987 he was detained again by the Sri Lankan security forces, and forced to walk through minefields. He was imprisoned between June and August 1987, during which time he was beaten, hanged upside down and interrogated. In August 1989, he was detained by the Indian peace-keeping force for nine days. Once again he was beaten and tortured. Upon release, he went into hiding until March 1990, when the Indian peace-keeping force left his home area, which then came under the control of the Liberation Tigers of Tamil Eelam ("LTTE"). In about May 1993, he decided to travel to Colombo, because the Sri Lankan army had moved north. He arrived in Colombo on 23 June 1993. He left Sri Lanka and on 14 July 1993 he arrived in the United Kingdom and claimed asylum. His claim was refused by letter dated 20 August 1993, and he was refused leave to enter on 25 August 1993.

Senathirajah Ravichandran was born on 22 July 1969 in the Jaffna region. In 1989, he was detained by the Indian peace-keeping force and held in a camp for 22 days, during which time he was repeatedly beaten and interrogated. In 1991, he was detained by the Sri Lankan security forces, and held in a camp for one-and-a-half months. He was repeatedly interrogated and beaten whilst bound. On three occasions, he was suspended from a ceiling by his feet. Early in 1993, he moved to Colombo. In April 1993, he was detained in a round-up of Tamils in Colombo, and held for two days. Six days after his release, he was detained in another round-up, and held for three days. In May 1993, he was detained in a third round-up. This time he was held for 15 days, and was beaten and interrogated. On his release, he went into hiding, and arrangements were made for him to leave Sri Lanka. He arrived in the United Kingdom on 2 July 1993, and claimed asylum. His claim was refused by letter dated 25 August 1993, and leave to enter was refused on 28 August 1993.

Both applicants had a history of limited involvement with the LTTE, for example by helping to dig bunkers to protect the local population from government air raids.

They both appealed against the refusal of leave to enter. On 17 August 1994, their appeals were dismissed by written determination. The special adjudicator decided that the LTTE was a terrorist organisation, and that those who supported it were not entitled to Convention protection, alternatively that they could in any event be returned to Colombo, which was an area where they would not be justified in claiming that they had a reasonable fear of persecution. The special adjudicator made a recommendation that Mr Sandralingam be granted exceptional leave to remain until there was some improvement in his health and condition.

On 19 January 1995, their appeals were dismissed by the immigration Appeal Tribunal. On 11 October 1995, the Court of Appeal dismissed their appeals from the decisions of the Immigration Appeal Tribunal. On 12 February 1996, petitions for leave to appeal to the House of Lords were dismissed. On 13 February 1996, the Secretary of State gave removal directions to take effect on 15 February 1996.

On 14 February 1996, the solicitors acting on behalf of the applicants wrote identical letters to the Secretary of State and formally made fresh applications for leave to enter the United Kingdom as refugees in the light of recent developments in Sri Lanka. The letter referred to the fact that the cessation of hostilities in Sri Lanka had broken down on 19 April 1995, that there had been renewed fighting between the Sri Lankan forces and the LTTE in the north and east of the island, and that Tamil youths were now being persecuted in Colombo. Enclosed with the letters were various documents, including the determinations by Judge David Pearl in Janakan and Nitsingham.

On 15 February 1996, the Secretary of State rejected these "applications" as not constituting fresh claims for asylum. On 23 February 1996, the Secretary of State wrote to the applicants' solicitors, commenting in detail on the information provided in the letter of 14 February and the enclosed documents. It will be necessary to examine parts of this letter in some detail. However, the Secretary of State maintained his view that the applicants had not made a fresh claim for asylum. He also asserted that there had not been any deterioration in the general situation in Sri Lanka, including the Colombo area.

On 1 March, leave to apply for judicial review was granted by Buxton J.

The statutory framework

The Asylum and Immigration Appeals Act 1993 provides, so far as material, as follows:

"1.Interpretation.

In this Act-

'Claim for asylum' means a claim made by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdom's obligations under the Convention for him to be removed from, or required to leave, the United Kingdom ...

…

8. Appeals to special adjudicator.

(1)A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom' obligations under the Convention.

(2)A person who has limited leave under the 1971 Act to enter or remain in the United Kingdom may appeal to a special adjudicator against any variation of, or refusal to vary, the leave on the ground that it would be contrary to the United Kingdom's obligations under the Convention for him to be required to leave the United Kingdom after the time limited by the leave.

(3)Where the Secretary of State-

(a)has decided to make a deportation order against a person by virtue of section 3(5) of the 1971 Act, or

(b)has refused to revoke a deportation order made against a person by virtue of section 3(5) or (6) of that Act,

the person may appeal to a special adjudicator against the decision or refusal on the ground that his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention; but a person may not bring an appeal under both paragraph (a) and paragraph (b) above.

(4)Where directions are given as mentioned in section 16(1)(a) or (b) of the 1971 Act for a person's removal from the United Kingdom, the person may appeal to a special adjudicator against the directions on the ground that his removal in pursuance of the directions would be contrary to the United Kingdom's obligations under the Convention ...

…

(6)Schedule 2 to this Act (which makes supplementary provision about appeals under this section) shall have effect; and the preceding provisions of this section shall have effect subject to that Schedule.

Schedule 2.

2. A person may not bring an appeal on any of the grounds mentioned in sub-sections (1) to (4) of section 8 of this Act unless, before the time of the refusal, variation, decision or directions (as the case may be), he has made a claim for asylum."

The immigration rules (HC 395) laid before Parliament on 23 May 1994 provide so far as material as follows:

"Definition of asylum applicant.

327Under these Rules an asylum applicant is a person who claims that it would be contrary to the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees for him to be removed from or required to leave the United Kingdom. All such cases are referred to in these Rules as asylum applications.

Applications for asylum.

328All asylum applications will be determined by the Secretary of State in accordance with the United Kingdom's obligations under the United Nations Convention and Protocol relating to the Status of Refugees. Every asylum application made by a person at a port or airport in the United Kingdom will be referred by the Immigration Officer for determination by the Secretary of State in accordance with these Rules.

332If a person who has been refused leave to enter applies for asylum and that application is refused, leave to enter will again be refused unless the applicant qualifies for admission under any other provision of these Rules.

…

Previously rejected applications.

346When an asylum applicant has previously been refused asylum in the United Kingdom and can demonstrate no relevant and substantial change in his circumstances since that date, his application will be refused.

The issues

It is common ground that it is open to an asylum seeker to make more than one claim for asylum during a single uninterrupted stay in the United Kingdom: see R v Secretary of State for the Home Department ex parte Onibiyo, Court of Appeal 28 March 1996.*[1]

The issues are:

(i)Where the Secretary of State decides that a fresh claim for asylum has not been made, does that decision trigger a right of appeal under section 8 of the 1993 Act? If the answer is yes, then it is not in issue that I should order the Secretary of State to issue a notice of refusal of leave to enter, thereby enabling the applicants to appeal, and no further issues arise at this stage.

(ii)If the answer to (i) is no, it is common ground that the applicants can seek to challenge the decision of the Secretary of State by recourse to the court. The issue is whether the question whether a fresh claim for asylum has been made is a matter of precedent fact to be decided, in cases of dispute, by the court, or it is a matter for decision by the Secretary of State, challengeable only on the usual public law grounds.

(iii)It is common ground that the test of what constitutes a fresh claim has been authoritatively determined by the Court of Appeal in ex parte Onibiyo. Sir Thomas Bingham MR said:

"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".

It is in issue whether this test has been adequately applied by the Secretary of State in the present case.

(iv)Whether in refusing to accept the recommendation of the special adjudicator in the case of Mr Sandralingam, the Secretary of State acted unlawfully.

The section 8 issue

Mr Lewis submits that the effect of paragraphs 332 and 346 of the rules is that if a fresh asylum claim is made and refused, the Secretary of State is obliged to refuse leave to enter, and a refusal of leave to enter will, trigger a right of appeal under section 8 (1) of the Act.

In my judgment, the rules do not provide the answer to the question at issue. Paragraph 332 is not concerned with successive applications for asylum at all. Paragraphs 328 to 334 appear under the general heading "applications for asylum". Successive applications for asylum are dealt with under the heading "previously rejected applications" in paragraphs 346 and 347. Paragraph 332 is concerned with the case where a person, who has been refused leave to enter on a different ground altogether, subsequently applies for asylum. This rule states expressly what had been declared implicitly to be the position under the earlier rules in R v Immigration Appeal Tribunal ex parte Secretary of State for the Home Department [1990] 1 WLR 1126. Thus the statement in paragraph 332 that "leave to enter will again be refused" is not intended to apply to a case of successive applications for asylum.

Paragraph 346, which does apply to successive asylum applications, does not shed any light on the question whether, if a subsequent application is refused because no relevant and substantial change in circumstances has been demonstrated, the refusal should be accompanied or followed by a refusal of leave to enter.

Mr Jay submits that the solution to the problem is to be found in paragraph 2 of schedule 2 to the Act. If a fresh claim for asylum has been made and is refused, it must be accompanied or followed by a refusal of leave to enter. This will trigger a right of appeal under section 8(1). If a fresh claim has not been made, then paragraph 2 of schedule 2 precludes any appeal under section 8(1) to (4) of the Act. In my view, this is clearly right. A separate question (to which I shall come shortly) is who is to decide whether a fresh claim has been made, and whether, if it is the court, the question is one of precedent fact or not. What is clear, however, is that it is insufficient for an applicant to circumvent paragraph 2 schedule 2 by simply asserting that a claim is a fresh claim. It must be determined to be a fresh claim before a right of appeal can be triggered.

Mr Lewis submits that I should follow the reasoning of Carnwath J in R v Secretary of State for the Home Department ex parte Manvinder Singh [1996] Imm AR 41 and hold that where an applicant asserts that he has made a fresh claim for asylum which has been refused by the Secretary of State, that is a sufficient trigger for an appeal, and it is for the appellate authorities to decide whether it is in truth a fresh claim or not. That was a case concerning removal directions. If an appeal lay, it would be under section 8(4) of the Act. At page 52, Carnwath J said:

"The issue whether there has been a "fresh claim" arises, if at all, under paragraph 2 of schedule 2. It is expressed as a procedural bar. As such it would normally be a matter to be decided, in the first instance, by the court or tribunal to which the appeal has been made-not by one of the parties. Thus, the natural inference from the rules is that the question, whether or not there has been a fresh claim for the purposes of schedule 2, is one to be determined by the adjudicator. The Secretary of State can make representations, but one would not expect him, as a party, to be able to determine the matter.

…

I am not, in any event, convinced that under section 8(4) the critical question normally is whether there has been a 'fresh claim to asylum'. The right of appeal is against the removal directions, not against refusal of a claim to asylum. The existence of a prior claim is simply a precondition to the appeal. If there are no fresh 'removal directions' to trigger the appeal, the precondition does not arise ..."

Carnwath J had referred at pages 46 and 47 to certain rules contained in the Asylum Appeals (Procedure) Rules 1993. As Mr Jay points out, the rules cannot be used to interpret the statute, although I accept that, if it is reasonably possible to do so, the rules and the statutory provisions should be construed harmoniously with each other, and that the rules in any event fill many of the lacunae left by the statute.

The difficulty that I find with the reasoning of Carnwath J is that in the absence of a prior claim for asylum, an appeal may not be brought. Although the Court of Appeal in ex parte Onibiyo did not expressly disapprove this part of the decision of Carnwath J, it seems to me that it must be taken impliedly to have done so. Having stated the criteria for determining what constitutes a fresh claim for asylum, Sir Thomas Bingham MR continued at page 18 of the transcript as follows:

"(2)Who is to decide?

It is plain from rule 328 of HC 395 that all asylum applications will be determined by the Secretary of State in the first instance.

(3)Procedural consequences.

If the Secretary of State decides on a fresh claim to grant asylum, and the claimant is accordingly granted limited leave to enter, no procedural difficulty is likely to arise.

If the Secretary of State recognises a fresh claim as a 'claim for asylum', but nonetheless decides that asylum should not be granted, I see no reason why the same consequences should not follow as on refusal of an initial claim. The disappointed claimant can pursue his right of appeal under section 8.

The problematical situation is that in which, as here, the Secretary of State does not recognise a claim as a fresh 'claim for asylum' and so declines to make any decision or to take or omit to take any action which would trigger a right of appeal under section 8. Neither party suggested that the asylum seeker was without redress in this situation, and both accepted that redress could be obtained only by resort to the court. But there agreement ended.

It is clear that the Master of the Rolls was saying that, if the Secretary of State did not recognise a claim as a fresh claim for asylum, he would prevent a right of appeal under section 8. In other words, the decision of the Secretary of State as to whether a claim is a fresh claim or not stands until and unless it is corrected on a review by the court. So long as that decision stands, it has been determined that the applicant has not made a fresh claim for asylum, and paragraph 2 of schedule 2 is a bar to an appeal. Mr Lewis suggested that this part of the decision was based on a concession by counsel, and is therefore not binding on me. It is not clear how much of the passage that I have quoted was common ground. Be that as it may, it clearly had the endorsement of the Master of the Rolls (with whom the other members of the court agreed). If I need to say that I agree with the passage that I have just quoted, then I do agree with it.

In his reply, Mr Lewis suggested that the position under section 8(1) may be different from that under section 8(2) to (4). Ex parte Onibiyo was a case under section 8(3)(b). I cannot accept Mr Lewis's suggestion. It is clear from paragraph 2 of schedule 2 that the issue with which I am concerned must be decided in the same way in relation to the possibility of an appeal under any of the sub-sections to section 8. Mr Lewis could suggest no rational basis for imputing to Parliament an intention to treat appeals under section 8(1) differently from appeals under the other sub-sections in this important respect.

I conclude, therefore, that where the Secretary of State decides that a fresh claim for asylum has not been made, that decision does not trigger a right of appeal under section 8.

The precedent fact issue

It is agreed that there is no binding authority on this issue. In ex parte Manvinder Singh, the Court of Appeal did not deal with the point, but was content to assume that Carwath J was right to hold that it is not for the Secretary of State, but for the special adjudicator to decide whether any particular application amounts to a fresh claim giving rise to a fresh right of appeal. In ex parte Onibiyo, the Master of the Rolls offered a "tentative answer" to the question at issue. The answer to the question was not determinative of the appeal in that case. He said:

"The role of the court in the immigration field varies, depending on the legislative and administrative context. Where an exercise of administrative power is dependent on the establishment of an objective precedent fact the court will, if called upon to do so in case of dispute, itself rule whether such fact is established to the requisite standard. Thus, for example, where power to detain and remove is dependent on a finding that the detainee is an illegal entrant, one who has entered clandestinely or by fraud and deceit, the court will itself rule whether the evidence is such as to justify that finding: R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74. By contrast, the decision whether an asylum seeker is a refugee is a question to be determined by the Secretary of State and the immigration appellate authorities, whose determinations are susceptible to challenge only on Wednesbury principles: R v Secretary of State for the Home Department ex parte Liugdaycay [1987] AC 514. 1 am of opinion, although with some misgivings, that the judgment whether a fresh 'claim for asylum' has been made should be assimilated with the latter, and not the former, class of judgment. If the test propounded in (1) above is correct, the answer to the question whether or not a fresh 'claim for asylum' has been made will depend not on the finding of any objective fact, nor even on a literal comparison of the earlier and the later claim, but on an exercise of judgment, and this is the field in which the initial judgments are very clearly entrusted to the Secretary of State. In giving effect, for example, to rule 346 of HC 395, it must be for the Secretary of State and not for the court to rule whether the applicant can demonstrate a relevant and substantial change in circumstances since his refusal of an earlier application. In a case such as that which the Secretary of State may make under section 21 of the 1971 Act'.

In R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74, the question arose in the context of an illegal entrant, defined by section 33(1) of the Immigration Act 1971 as:

"a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered".

In R v Secretary of State for the Home Department ex parte Zamir [1980] AC 930, the House of Lords had held inter alia that the question whether an applicant was an illegal entrant was one of precedent fact, and not for the Secretary of State (subject only to review by the courts). This approach was rejected in ex parte Khawaja. Lord Scarman said at page 108D:

"The gloss which the House in Zamir's case put upon the words of paragraph 9 was to read them as meaning not 'where a person is an illegal entrant' but 'where the immigration officer has reasonable grounds for believing a person to be an illegal immigrant' he may be removed if not given leave to enter. If it be sought to justify the gloss as a proper construction of the statutory language, there is a difficulty. The gloss requires the introduction into the paragraph of words that are not there. Must they, then, be implied? This question lies at the heart of the problem".

and at page 111 E:

"Accordingly, faced with the jealous care our law traditionally devotes to the protection of the liberty of those who are subject to its jurisdiction, I find it impossible to imply into the statute words the effect of which would be to take the provision, paragraph 9 of schedule 2 to the Act, 'out of the "precedent fact" category' (Lord Wilberforce, Zamir's case at p.948). If Parliament intends to exclude effective judicial review of the exercise of a power in restraint of liberty, it must make its meaning crystal clear".

Lord Bridge also started from the position that the question was one of precedent fact, unless additional words could be introduced into paragraph 9 of schedule 2 of the 1971 Act. At page 120F he said:

"It will be further observed that to justify the principle important words have to be read into paragraph 9 of schedule 2 by implication. That paragraph, on the face of the language used, authorises the removal of a person who is an illegal entrant. The courts have applied it as if it authorised the removal of a person whom an immigration officer on reasonable grounds believes to be, an illegal entrant. The all important question is whether such an implication can be justified".

He concluded at page 123A:

"On the view I take, paragraph 9 of schedule 2 must be construed as meaning no more and no less than it says. There is no room for any implication qualifying the words 'illegal entrant"'.

Like Lord Scarman, he regarded the fact that there are powers to arrest and detain illegal entrants as a reason for being slow to do other than give the language of paragraph 9 of schedule 2 its plain and ordinary meaning. Lord Fraser and Lord Templeman agreed on this issue.

In R v Secretary of State for the Home Department ex parte Bugdaycay [1987] 1 AC 514, the question at issue was whether the applicants were refugees entitled to asylum. The relevant definition of refugee is:

"any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country."

It was argued that the question whether a person was a refugee was one of precedent fact. Ex parte Khawaja was distinguished. At page 522F, Lord Bridge said:

"The reason why this argument cannot be sustained is that all questions of fact on which the discretionary decision whether to grant or with old leave to enter or remain depends must necessarily be detrained by the immigration officer or the Secretary of State in the exercise of the discretion which is exclusively conferred upon them by section 4(1) of the Act. The question whether an applicant for leave to enter or remain is or is not a refugee is only one, even if a particularly important one required by paragraph 73 of HC 169 to be refer-red to the Home Office, of a multiplicity of questions which immigration officers and officials of the Home Office acting for the Secretary of State must daily determine in dealing with applications for leave to enter or remain in accordance with the rules, as, for example, whether an applicant is a bonafide visitor, student, businessman, dependant etc. Determination of such questions is only open to challenge in the courts on the well known Wednesbury principles [Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223]. There is no ground for treating the question raised by a claim to refugee status as an exception to this rule. For the reasons explained at length in the speeches in Khawaja's case the court's fundamentally different approach to an order for removal on the ground of illegal entry is dictated by the terms of the statute itself, since the power to direct removal under paragraph 9 of schedule 2 is only available in the case of a person who is in fact an 'illegal entrant. "'

Lord Templeman said at page 535F:

"The Act of 1971 does not allow the courts of this country to participate in decision-making or appellate processes which control and regulate the right to enter and remain in the United Kingdom. This also is not surprising. Applications for leave to enter and remain do not in general raise justiciable issues. Decisions under the Act are administrative and discretionary rather than judicial and imperative. Such decisions may involve the immigration authorities in pursuing enquiries abroad, in consulting official and unofficial organisations and in making value judgments. The only power of the court is to quash or grant other effective relief in judicial review proceedings in respect of any decision under the Act of 1971 which is made in breach of the provisions of the Act or the rules thereunder or which is the result of procedural impropriety or unfairness or is otherwise unlawful".

The question of whether a person is an illegal entrant does not involve value judgments, pursuing enquiries abroad or consulting organisations as to the state of affairs in another country. It involves a pure question of fact. A person can become an illegal entrant by entering without leave, or by obtaining leave by deception. It is not difficult to see why in ex parte Khawaja, the House of Lords was unwilling to construe "illegal entrant" as importing any judgment on the part of the immigration authorities, In construing the words as meaning precisely what they said, the House found no sufficient reason for adding further words by implication. On the contrary, the need jealously to safeguard the liberty of the subject afforded a good reason for refusing to imply additional words. On the other hand, the question whether a person is a refugee is not a pure question of fact. Lord Bridge regarded it as one of the multiplicity of questions that immigration authorities must determine as part of their discretionary decisions whether to grant or withold leave under section 4(1) of the 1971 Act. Lord Templeman put it in terms of discretionary and administrative decisions.

Turning to the present case, it is clear that an application of what the Master of the Rolls in ex parte Onibiyo described as the "acid test" involves an exercise which is very different from making findings of pure fact. Determining whether any claim for asylum is made out involves deciding whether the claimant is a refugee. As ex parte Bugdaycay makes clear, such a decision, if challengeable in the courts, can only be impugned on Wednesbury grounds. Where a later claim is made, the Secretary of State is required to compare it with the earlier claim, and form a view as to whether it is sufficiently different from it that a special adjudicator might reasonably take a favourable view of the later claim, despite the rejection of the earlier one. The Secretary of State is required, (i) to form a view of the merits of the later claim, excluding material on which the claimant could reasonably have been expected to rely in support of the earlier one, and (ii) compare the later claim with the earlier one. The assessment of the merits of the later claim involves the same kind of exercise of fact-finding and judgment as the assessment of the merits of the earlier claim. The process of comparison of the two also involves an exercise of judgment, including a decision on what may be a difficult question, namely whether the new claim is sufficiently different from the earlier one to admit of a realistic prospect that the later claim could succeed.

For these reasons, I respectfully agree with the view of Sir Thomas Bingham MR that the question whether a fresh claim has been made is not one of precedent fact, and the decision of the Secretary of State is susceptible to challenge only on Wednesbury grounds.

The Wednesbury challenge to the Secretary of State's decision that no fresh claims for asylum have been made

In his letter dated 23 February 1996, the Secretary of State said that he did not accept the view expressed by Chief Adjudicator Judge David Pearl in Nitsingham and Janikan. These cases were heard in January 1996. Judge Pearl said that the situation in Colombo and the surrounding areas for young Tamils was "very serious indeed", that it was no longer as described by the Tribunal in the case of Mr Ravinchandran, and that in January 1996 young male Tamils, who had a history of involvement with the LTTE by digging bunkers, collecting money and the like, had a well-founded fear of persecution for a Convention reason, if returned to Colombo. The view of the Secretary of State, as stated in his letter of 23 February 1996, was that the situation in Colombo was improving. At paragraph 10 of the letter, he wrote:

"The Secretary of State does not accept that it is even remotely arguable that a fresh application by your clients has been made so as to justify further appeal rights. Mr Justice Latham in Onibiyo (unreported, 19 January 1996) held that no fresh application could be made in these circumstances as a matter of law. It is understood that this case is on appeal to the Court of Appeal but it currently declares the state of the law. The highest that the case could be put in your clients' favour, is that on the basis of the criterion laid down by Stuart-Smith LJ in Manvinder Singh at page 14 of the unrevised transcript. In terms of the essential elements of your clients' asylum claims, and conducting a comparison between that claim as originally advanced and later determined by the independent appellate authorities, and that claim as now put forward by you, there has been no relevant and substantial change in circumstances. Rather, it is asserted not that the source of the alleged persecution has altered, but that it has intensified in degree: quantitative shifts of this nature are not sufficient to constitute a new asylum claim. For the avoidance of doubt, I would like to make it clear on behalf of the Secretary of State that he does not accept that there has been any deterioration in the general situation in Sri Lanka including, the Colombo area."

In approaching the question whether fresh claims for asylum had been made, the Secretary of State was purporting to apply the test formulated by Stuart-Smith LJ in ex parte Manvinder Singh, which was in these terms:

"In my opinion, in deciding whether or not a fresh claim to asylum is made, it is necessary to analyse what are the essential ingredients of a claim to asylum and see whether any of those ingredients have changed. A useful analogy is to consider a cause of action. In order to establish a cause of action a plaintiff must prove certain ingredients. How he proves them is a matter of evidence. If he changes the essential ingredients, he is asserting a different cause of action.

What are the essential ingredients of a claim for asylum? First, that the applicant has a well founded fear of persecution; secondly, that he has that fear in relation to the country from whence he came; thirdly that the source of the persecution is the authorities of that state or, alternatively, some other group or local population where the actions of the group are knowingly tolerated by the authorities, or that the authorities refused or are unable to offer effective protection (see the handbook of the UNHCR paragraph 65); finally, that the persecution is by reason of the applicant's race, religion, nationality or membership of a particular social or political group.

In my view, it is only if the applicant asserts that one or more of these essential ingredients is different from his earlier claim that it can be said to be a fresh claim".

This formulation must now be interpreted in the light of the explanation given by the Master of the Rolls in ex parte Onibiyo who, in the sentence immediately preceding his statement of the "acid test", which I have already quoted, said that the test of what constitutes a fresh claim should not be taken to mean that there must necessarily be a change in the nature of the persecution said to be feared. Thus, 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. It is perhaps understandable that the Secretary of State interpreted the test formulated by StuartSmith LJ as saying that it is a condition of a fresh claim that the nature of the persecution alleged to be feared should be different from the alleged persecution which formed the basis of the earlier claim.

At all events, in my judgment it is clear that in paragraph 10 of his letter of 23 February 1996, the Secretary of State applied the wrong test, when considering whether the letters of 14 February 1996 were fresh claims for asylum. He wrongly regarded it to be a condition of a fresh claim that the source of the alleged persecution relied upon in connection with the later claim should be different from that relied upon in support of the earlier one. Contrary to his view, an intensification in the degree of persecution from the same source is capable of giving rise to a fresh claim.

It is clear that Judge David Pearl is of the view that, although there may have been no objective ground for fearing persecution of Tamils in Colombo before the fall of Jaffna, such grounds have existed since then. Such a change of circumstances cannot be said to be incapable of founding a fresh claim merely because the source of the alleged persecution has not changed, or because the change is a "quantative shift".

Mr Jay accepted that the approach of the Secretary of State to the question of whether or not fresh claims had been made could not be supported in the light of the "acid test" enunciated by the Master of the Rolls in ex parte Onibiyo. Nevertheless, he submitted that this was immaterial, since the Secretary of State was entitled to find that there had been no deterioration in the general situation in Sri Lanka, including the Colombo area. The problem with this submission is that the question for the Secretary of State was not whether there had been any deterioration in the general situation in Sri Lanka, but whether the new claim was sufficiently different from the earlier claim to admit of a realistic prospect that it could succeed despite the rejection of the earlier one. I accept that in determining the answer to this question, the Secretary of State is entitled to look at the quality of the new evidence put forward in support of the later claim. He may reject the new material, and his rejection may to lead him to the conclusion that the new claim is not sufficiently different from the earlier one to admit of a realistic prospect that a favourable view could be taken of the new claim despite the rejection of the earlier one. On the other hand, the Secretary of State may disagree with the new material, but nevertheless recognise that the special adjudicator might reasonably be persuaded by it.

In the present case, the Chief Adjudicator has in reasoned determinations in effect decided that there was a material change of circumstances for the Tamils in the Colombo area of Sri Lanka between the dates of the first and second claims by Mr Sandralingam and Mr Ravichandran. It seems to me that it is at least arguable that, if the Secretary of State had applied the correct test, then although he disagreed with the conclusion of Judge David Pearl, he would nevertheless have decided that the later claims in the present case were sufficiently different from the earlier ones to admit of a realistic prospect that a favourable view could be taken of them despite the unfavourable conclusion reached on the earlier ones.

It is important that the Secretary of State should conscientiously apply the test formulated by the Master of the Rolls in ex parte Onibiyo. This involves drawing a careful distinction between deciding a new claim on its merits, and deciding whether a new claim is sufficiently different from an earlier claim to admit of a realistic prospect that it could succeed, despite the rejection of the earlier one.

It follows that the applicants succeed on the third issue, and that the decision of the Secretary of State that no fresh claims for asylum have been made must be quashed, and the matter remitted to him for further consideration.

Refusal to accept the recommendation of the special adjudicator in the case of Mr Sandralingam

The special adjudicator identified a number of "exceptional circumstances", which led him to recommend to the Secretary of State that leave to remain should be granted to Mr Sandralingam until there had been some improvement in his health and condition. These were (i) that he had been only 15 or 16 years of age when he started to assist the LTTE; (ii) the special adjudicator was struck by his demeanour at the hearing, describing him as "extremely withdrawn, nervous and unsure of himself"; and (iii) the medical evidence that when examined in Oxford, he was so distressed with the memory of his previous imprisonment that he developed acute breathlessness and needed to be taken into hospital; that he had an irrational worry that he might be assaulted or might witness an assault; and that he slept very poorly and woke up every night having nightmares recalling his experiences.

The policy of the Secretary of State in relation to the grant of exceptional leave to remain is deposed to in the affidavit sworn by Maria Senior. Put shortly, it is that:

"A person who is not recognised as a refugee in the United Kingdom in accordance with the 1951 United Nations Convention relating to the status of refugees may be granted exceptional leave to enter or remain if there are compelling humanitarian reasons for not returning him to his country of origin".

His policy in relation to the recommendation of adjudicators is that:

"It is the normal policy to accept Adjudicators' recommendations unless to do so would be unreasonable or inconsistent, or would undermine general policy. There is no variation in the application of this policy as between one type of appeal or another".

The Secretary of State is of the opinion that it would be safe for Mr Sandralingam to return to Colombo, because the position of Tamils in the Colombo area is improving. That is a view which the Secretary of State is plainly entitled to hold. In the result, he considers that:

"The applicant's case is little or no different from that of many other young male Tamils in his position, although it has been individually considered. The Secretary of State disagrees with Mr Rapinet's view that the Applicant is at risk and does not propose to follow the Special Adjudicator's recommendation. To do so would be inconsistent with the Secretary of State's general policy which is to the effect that removal of applicants to the Colombo area would not violate any principles of compassion or humanity. I reiterate that exceptional leave is, as its name indicates, exceptional. To make exceptions to the policy without good reason would be inconsistent with the policy and would undermine it."

(See paragraph 9 of Maria Senior's affidavit).

In my judgment, this view is consistent with the stated policy in relation to recommendations by adjudicators.

Mr Lewis also challenges the decision of the Secretary of State on the grounds that, in deciding to reject the recommendation, no consideration has been given to the particular case of Mr Sandralingam, and the "exceptional circumstances" identified by the special adjudicator. It is true that no reference was made in the affidavit of Maria Senior to the particular factors that led to the recommendation. At paragraph 11 of the letter of 23 February 1996, however, appears the following:

"The Secretary of State disagrees with the Special Adjudicator's view that Mr Sandralingam's claim that he gets frightened walking around London and that he sleeps very poorly and experiences nightmares, are reasons which are sufficiently compelling or humanitarian to warrant the Secretary of State granting him leave to enter the United Kingdom exceptionally, outside the Immigration Rules".

Accordingly, the Secretary of State has given consideration to the principal factors mentioned by the special adjudicator. The Secretary of State was not bound to accept the recommendations. In my view, the decision not to do so cannot properly be described as perverse in the Wednesbury sense. Accordingly, the Secretary of State's refusal to accept the recommendation was not unlawful.

Conclusion

For the reasons expressed in relation to the third issue, these applications succeed.

Applications granted

Solicitors: M K Sri & Co, Harrow, Vetti & Co, Stockwell; Treasury Solicitor



[1]* See now [1996] Imm AR 370.

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