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Section 94 excludes appeals in asylum and human rights cases if the Secretary of State certifies that they are clearly unfounded. STA |
The relevant subsections, as amended, provide as follows: (1) This section applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human rights claim (or both). STA |
(2) A person may not bring an appeal to which this section applies in reliance on section 92(4)(a) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded. STA |
(9) Where a person in relation to whom a certificate is issued under this section subsequently brings an appeal under section 82(1) while outside the United Kingdom, the appeal shall be considered as if he had not been removed from the United Kingdom. STA |
Section 96 removes the right of appeal altogether if the Secretary of State or an immigration officer certifies that the person has dealt with, or ought to have dealt with, the issue in an earlier appeal. STA |
The relevant subsections of section 96, as amended, are in these terms: (1) An appeal under section 82(1) against an immigration decision (the new decision) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies (a) that the person was notified of a right of appeal under... |
(2) An appeal under section 82(1) against an immigration decision (the new decision) in respect of a person may not be brought if the Secretary of State or an immigration officer certifies (a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relat... |
The expressions asylum claim and human rights claim are each defined in section 113(1). STA |
It provides: In this Part, unless a contrary intention appears asylum claim means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or to require him to leave the United Kingdom would breach the United Kingdoms obligations under the Refugee... |
As Sedley LJ observed in the Court of Appeal, under this amended formula a claim in any case where an earlier challenge to removal has been made and failed will only rank as an asylum claim or a human rights claim if it is a fresh claim under rule 353: [2009] 2 WLR 1370, para 27. STA |
The amendment has not yet been brought into force, as the entire system of immigration law is now under review. STA |
A Green Paper containing proposals to simplify the law was published in February 2008, and it is expected that a Bill to simplify the law will be published towards the end of this year. STA |
No certificates under either section 94 or section 96 have been issued to the respondent in either case. Ratio |
They maintain that in these circumstances they are entitled to have their appeals heard in-country under section 92(4)(a), and that they cannot be removed from the United Kingdom until their appeals have been dealt with. Ratio |
The Secretary of States contention is that an appeal against an immigration decision is available only out of country where, as in BAs case, the further representations have not been advanced as a fresh claim or, as in PEs case, have not been accepted as such by the Secretary of State. Ratio |
He maintains that their appeals must now be pursued out of country. Ratio |
If so, there is now no obstacle to the respondents being deported in accordance with the deportation orders that have been served on them. Ratio |
The competing arguments in more detail ARG |
For the Secretary of State Miss Laing QC did not dispute that a right of appeal arises under section 82(1) when a decision that is an immigration decision is taken. ARG |
Nor does she dispute that the Secretary of States refusal in these cases not to revoke the deportation orders were immigration decisions within the meaning of section 82(2)(k) of the 2002 Act. ARG |
What was in issue was whether the right of appeal against those decisions was to be exercised from within the United Kingdom. Ratio |
Her submission was that the words an asylum claim, or a human rights claim in section 92(4)(a) mean a first asylum or human rights claim or a second or subsequent asylum or human rights claim which has been accepted as a fresh claim under rule 353 of the Immigration Rules. ARG |
She acknowledged that this was not the literal meaning of this provision, as the definitions of these expressions made no reference to the fact that the claims to which they referred had to be a first or a fresh claim. ARG |
But she said that they had to be construed in the context of the scheme of the statute as a whole, and that they had to be read in the way she suggested to avoid an absurdity. ARG |
She submitted that the authorities also showed that they had to be read subject to this qualification. ARG |
She based this submission on two decisions of the Court of Appeal: Cakabay v Secretary of State for the Home Department (Nos 2 and 3) [1999] Imm AR 176 and R v Secretary of State for the Home Department, ex p Onibiyo [1996] QB 768. ARG |
In each of these cases observations were made about the treatment of repeat claims for asylum in the context of the provisions of the Asylum and Immigration Appeals Act 1993. ARG |
In Cakabay v Secretary of State for the Home Department (Nos 2 and 3) [1999] Imm AR 176, 180-181, Schiemann LJ said: The statute makes no express provision as to what is to be done in the case of repeated claims for asylum by the same person. PRE |
The second claim may be identical to the first (a repetitious claim) or may be different (a fresh claim). PRE |
It is common ground that a fresh claim attracts all the substantive and procedural consequences of an initial claim whereas a repetitious claim does not. PRE |
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. PRE |
Section 6 of the 1993 Act creates no inhibition on the claimants removal: the Secretary of State has on the occasion of his decision on the first claim decided the repetitious claim. PRE |
So far as the decision on the claimants 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. PRE |
In R v Secretary of State for the Home Department, ex p Onibiyo [1996] QB 768 the court had to consider whether, as a matter of law, a person might make more than one claim for asylum within the meaning of section 6 of the 1993 Act during a single uninterrupted stay in the United Kingdom. PRE |
The Secretary of State argued that, once a person had made a claim for asylum, had had that claim refused and had unsuccessfully exercised his rights of appeal under section 9 of that Act, his legal rights were exhausted. PRE |
There could be no further claim for asylum unless the claimant left the United Kingdom and returned before making a fresh application. PRE |
At p 781 Sir Thomas Bingham MR rejected that argument. PRE |
He said that it would undermine the beneficial object of the Convention if the making of an unsuccessful application for asylum were to be treated as modifying the obligation of the United Kingdom or depriving a person of the right to make a fresh claim for asylum. PRE |
He then discussed what constituted a fresh claim. PRE |
At pp 783-784 he said that the acid test must always be whether, comparing the new claim with that which had been rejected, and excluding material on which the claimant could reasonably be expected to rely in the earlier claim, the new claim was sufficiently different from the earlier claim to admit of a realistic pros... |
Miss Laing said that the same approach should be taken to the words used in section 92(4)(a) of the 2002 Act. ARG |
She submitted that the intention of Parliament when enacting this provision had to be derived from the context, the legislative history and the requirements of the international instruments. ARG |
The essential features of the 2002 Act remained the same as those in the 1993 Act. ARG |
It was to be assumed that where the same words were used they were intended to have the same meaning. ARG |
It was implicit in the approach that was taken in Ex p Onibiyo that the Convention did not require protection against removal if all that the further representations were doing was to repeat an earlier claim which had been considered and rejected on appeal. ARG |
What the international instruments required was compliance, not redundancy. ARG |
It was only a fresh claim that would be an obstacle to the claimants removal, by converting what would otherwise be an out of country appeal into an appeal that must be dealt with in-country. ARG |
As for the prospective amendment of section 113, she said that it did two things. ARG |
It removed the requirement that a claim be made at a place designated by the Secretary of State. ARG |
And it clarified what section 113 should be taken to have meant on enactment. ARG |
In the words of the Explanatory Notes, its purpose is to clarify that further submissions which follow the refusal of an asylum or human rights claim but which do not amount to a fresh claim will not carry a further right of appeal. ARG |
But it was of no assistance in resolving the argument either way as to the meaning of the definitions in their current form. ARG |
Lloyd LJ was right when he said in the Court of Appeal that the amendment should be ignored: [2009] 2 WLR 1370, para 35. ARG |
Mr Husain too submitted that the meaning of the words used in section 94(2)(a) must be understood from their context. ARG |
But he said that the context was markedly different from that in the 1993 Act. ARG |
There was now a series of statutory provisions against abuse which were not to be found in the earlier legislation. ARG |
It was those provisions, and not those instituted under the Immigration Rules by the executive, that should be used if it was thought that the appeals should not be dealt with in-country. ARG |
The Secretary of States approach rendered the new provisions otiose and unworkable in the case of second claims. ARG |
For example, Parliament had provided by section 84(1)(g) that an appeal against an immigration decision might be taken on the ground that the persons removal from the United Kingdom would breach the States obligations under the Refugee Convention. ARG |
Section 84(1)(c) dealt with the situation where it was contended that the decision was unlawful under section 6 of the Human Rights Act 1998. ARG |
But the rights conferred by the European Convention on Human Rights were, in various respects, not the same: JM v Secretary of State for the Home Department [2006] EWCA Civ 1402; [2007] Imm AR 293, para 27, per Laws LJ. ARG |
If the Secretary of State was right that the appeal could only be taken in-country if it was certified under rule 353, the person would be forced to take his appeal out of country even although it was on grounds referred to in section 84(1)(g), which could be different from those advanced at an earlier stage under sect... |
As he would be without a certificate under section 94, he would be deprived of the benefit of section 94(9). ARG |
As for what was said in R v Secretary of State for the Home Department, ex p Onibiyo, Mr Husain said that it was not the only relevant authority. ARG |
Prior to the enactment of the 2002 Act there were two other important decisions to which reference should be made. ARG |
In R (Kariharan) v Secretary of State for the Home Department [2002] EWCA Civ 1102, [2003] QB 933, reference was made to the one-stop procedure that was introduced by sections 74-77 of the Immigration and Asylum Act 1999 and to section 73 of that Act, which enabled the Secretary of State to certify that a claim that a ... |
In para 36 Sedley LJ said that those provisions gave ample powers to the Secretary of State to dispose summarily of repetitive and abusive appeals. ARG |
In R v Secretary of State for the Home Department, ex p Saleem [2001] 1 WLR 443, 449, Roche LJ accepted that the right of appeal to an independent appellate body was a fundamental or basic right akin to the right of unimpeded access to a court, an infringement of which must be either expressly authorised by or arise by... |
Furthermore the approach that was taken in R v Secretary of State for the Home Department, ex p Onibiyo to the problem of repeat claims was imprecise and had been rendered unnecessary by the current legislation. Ratio |
In that case, as Sir Thomas Bingham MR recorded at p 783, counsel for the applicant, Mr Blake QC, as he then was, had conceded that that a fresh claim for asylum could not be made by advancing, even with some elaboration or addition, a claim already made or by relying on evidence available to the applicant but not adva... |
A similar concession was made in Manvinder Singh v Secretary of State for the Home Department [1995] EWCA Civ 53, where Stuart-Smith LJ noted that in his skeleton argument Mr Blake QC had accepted that Parliament could not have intended removal to be indefinitely deferred pending successive identical appeals. Ratio |
The observations in Ex p Onibiyo had been inspired by the possibility of abuse. Ratio |
The contours of the legislation had now changed. Ratio |
The opportunity to resolve the issue by bringing the amendment of the definitions in section 113 into force had not been taken. Ratio |
It was difficult to understand why, if its purpose was simply to clarify, it had not been brought into force. Ratio |
As it was, the legislation had to be taken as it stood without regard to what may have been contemplated by the amendment. Ratio |
Discussion Ratio |
I have set out the competing arguments at some length, partly out of respect for the excellent submissions that were advanced by counsel on either side in the Chamber of the House of Lords on the occasion of the last sitting of the House in its judicial capacity, and partly because they demonstrate very clearly the ess... |
Miss Laing invites us to follow Sir Thomas Bingham MRs analysis of the problem in R v Secretary of State for the Home Department, ex p Onibiyo, to hold that the words an asylum claim, or a human rights claim in section 92(4)(a) of the 2002 Act mean a first asylum or human rights claim or a second or subsequent claim wh... |
Mr Husain on the other hand invites us to examine those words in the context of the current legislation read as a whole, taking full account of the progress of thinking since Ex p Onibiyo as to how the problem of repeat claims should be addressed. Ratio |
He submits that there is no justification, in the light of the provisions for dealing with repeat claims that the 2002 Act contains, for enlarging upon the plain words of the statute. Ratio |
The strength of Miss Laings argument lies in the fact that the definition of the phrase claim for asylum has remained, in substance, the same since its first appearance in section 1 of the 1993 Act where it was said to mean a claim made by a person (whether before or after the coming into force of this section) that it... |
The Convention there referred to was, of course, the Refugee Convention. Ratio |
The definition in section 167 of the 1999 Act was in substantially the same terms. Ratio |
Section 113 of the 2002 Act varies the language a little bit, because it calls this kind of claim an asylum claim, introduces a requirement for it to be made at a place designated by the Secretary of State (no such place has been designated) and adds a definition in almost identical terms of a human rights claim. Ratio |
The relevant phrase throughout is a claim. Ratio |
In R v Secretary of State for the Home Department, ex p Onibiyo the Secretary of States argument that once there had been a claim for asylum and one appeal there could be no further claim for asylum unless the claimant had left the United Kingdom and returned before making the fresh application was rejected. PRE |
It was held that there could be a fresh claim for asylum with the same consequences as to the right of appeal as follow on the refusal of an initial claim, provided that the Secretary of State recognised the fresh claim as a claim for asylum. PRE |
If one looks no further and applies what Bennion on Statutory Interpretation (5th ed, 2008), section 201 and Part XIV described as the informed interpretation rule, there is plainly much to be said for the view that the definitions that are set out in section 113 of the 2002 Act should be read in the same way. Ratio |
The procedure for determining whether a repeat claim is or is not a fresh claim is set out in rule 353 of the Immigration Rules, the effect of which I attempted to explain in Z T (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, para 33. Ratio |
It is a short step to conclude that a repeat claim which is not held under rule 353 to be a fresh claim falls to be disregarded as an asylum claim, or a human rights claim for the purposes of section 92(4)(a). Ratio |
Like Lloyd LJ, I would not draw an inference either way from the amendment of section 113 by section 12 of the 2006 Act as it is not yet in force. Ratio |
It is an elementary principle, however, that the words of a statute should be construed in the context of the scheme of the statute as a whole. Ratio |
And it is plain that the scheme of the 2002 Act is not the same as that of the 1993 Act to which Sir Thomas Bingham MR addressed himself in Ex p Onibiyo. Ratio |
The problem to which he addressed himself was created by the absence of any provision in the statute to prevent abuse. Ratio |
The question was how that gap might best be filled, having regard to the fact that the blunt solution that was proposed by the Secretary of State would, as the Master of the Rolls pointed out at p 781, undermine the beneficial object of the Convention and the measures giving effect to it in this country. Ratio |
Parliament might, of course, have stood still and left the matter to be dealt with under the Immigration Rules. Ratio |
But it has not stood still. Ratio |
The experience of the intervening years has been taken into account. Ratio |
First, there were the provisions against abuse in sections 73 to 77 of the 1999 Act. Ratio |
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