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Now there is a set of entirely new provisions in the 2002 Act. Ratio |
As Lord Hoffmann said in A v Hoare [2008] UKHL 6, [2008] 1 AC 844, para 15, while there is a good deal of authority for having regard in the construction of a statute to the way a word or phrase has been construed by the court in earlier statutes, the value of such previous interpretation as a guide to construction wil... |
In this case the phrase in question has remained, in essence, unchanged. PRE |
But the system in which it must be made to work is very different. PRE |
This is a factor to which full weight must be given. PRE |
The new system contains a range of powers that enable the Secretary of State or, as the case may be, an immigration officer to deal with the problem of repeat claims. Ratio |
The Secretary of States power in section 94(2) of the 2002 Act to certify that a claim is clearly unfounded, if exercised, has the effect that the person may not bring his appeal in-country in reliance on section 92(4). Ratio |
The power in section 96 enables the Secretary of State or an immigration officer to certify that a person who is subject to a new immigration decision has raised an issue which has been dealt with, or ought to have been dealt with, in an earlier appeal against a previous immigration decision, which has the effect that ... |
It is common ground that the present cases are not certifiable under either of these two sections. Ratio |
Why then should they be subjected to a further requirement which is not mentioned anywhere in the 2002 Act? It can only be read into the Act by, as Sedley LJ in the Court of Appeal put it, glossing the meaning of the words aclaim so as to exclude a further claim which has not been held under rule 353 to be a fresh clai... |
The court had to do this in Ex p Onibiyo. Ratio |
But there is no need to do this now. Ratio |
It is not just that there is no need now to read those words into the statute. Ratio |
As Mr Husain pointed out, the two systems for excluding repeat claims are not compatible. Ratio |
Take the system that section 94 lays down for dealing with claims that the Secretary of State considers to be clearly unfounded. Ratio |
If he issues a certificate to that effect, the appeal must be pursued out of country. Ratio |
But the claimant will have the benefit of section 94(9), which provides that where a person in relation to whom a certificate under that section subsequently brings an appeal under section 82(1) while outside the United Kingdom the appeal will be considered as if he had not been removed from the United Kingdom. Ratio |
He will have the benefit too of the passage in parenthesis in section 95, which provides: A person who is outside the United Kingdom may not appeal under section 82(1) on the ground specified in section 84(1)(g) (except in a case to which section 94(9) applies). Ratio |
If Miss Laing is right, the effect of a decision by the Secretary of State that the representations that a person makes against an immigration decision of the kind mentioned in section 82(1)(k) a refusal to revoke a deportation order is not a fresh claim will be that an appeal against that decision must be brought out ... |
But the interpretative route by which she reaches that position does not save that person from the exclusionary rule in section 95, unless which has not been done in these cases the claims are also certified under section 94(2) as clearly unfounded. Ratio |
The ground of appeal referred to in section 84(1)(g) has been designed to honour the international obligations of the United Kingdom. Ratio |
To exclude claims which the Secretary of State considers not to be fresh claims from this ground of appeal, when claims which he certifies as clearly unfounded are given the benefit of it, can serve no good purpose. Ratio |
On the contrary, it risks undermining the beneficial objects of the Refugee Convention which the court in Onibiyo, under a legislative system which had no equivalent to section 95, was careful to avoid. Ratio |
In my opinion Lloyd LJ in the Court of Appeal was right to attach importance to this point: [2009] 2 WLR 1370, paras 39-40. Ratio |
As he said, the development of the legislative provisions and the powers given to the Secretary of State to limit the scope for in country appeals deprive Miss Laings submissions of the foundation which they need. Ratio |
There is obviously a balance to be struck. Ratio |
The immigration appeals system must not be burdened with worthless repeat claims. Ratio |
On the other hand, procedures that are put in place to address this problem must respect the United Kingdoms international obligations. Ratio |
That is what the legislative scheme does, when section 95 is read together with section 94(9). Ratio |
It preserves the right to maintain in an out of country appeal that the decision in question has breached international obligations. Ratio |
I would hold that claims which are not certified under section 94 or excluded under section 96, if rejected, should be allowed to proceed to appeal in-country under sections 82 and 92, whether or not they are accepted by the Secretary of State as fresh claims. Ratio |
There is no doubt, as I indicated in Z T (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, para 33, that rule 353 was drafted on the assumption that a claimant who made further submissions would be at risk of being removed or required to leave immediately if he does not have a fresh claim. Ratio |
That was indeed the case when this rule was originally drafted, as there was no equivalent of section 92(4) of the 2002 Act. Ratio |
But Mr Husains analysis has persuaded me that the legislative scheme that Parliament has now put in place does not have that effect. Ratio |
Its carefully interlocking provisions, when read as a whole, set out the complete code for dealing with repeat claims. Ratio |
Rule 353, as presently drafted, has no part to play in the legislative scheme. Ratio |
As an expression of the will of Parliament, it must take priority over the rules formulated by the executive. Ratio |
Rule 353A on the other hand remains in place as necessary protection against premature removal until the further submissions have been considered by the Secretary of State. Ratio |
Conclusion RPC |
I would dismiss these appeals and affirm the orders made by the Court of Appeal. RPC |
I have had the advantage of reading in draft the judgment of Lord Hope and am persuaded that for the reasons he has given these appeals should be dismissed. RPC |
I am in full agreement also with the comments made by Lord Brown whose judgment I have also had the advantage of reading in draft. RPC |
I agree with the judgment of Lord Hope and with the additional observations of Lord Brown. RPC |
The submission for the Home Secretary that the expression an asylum claim in section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 should be given the same meaning as Sir Thomas Bingham gave to the expression a claim for asylum in section 6 of the Asylum and Immigration Appeals Act 1993 is at first sight... |
Certainly, the change in the form of the expression is irrelevant. Ratio |
The contexts within which the two expressions have to be interpreted are, however, relevant. Ratio |
And, as Lord Hope explains, they are significantly different, since the 2002 Act contains a new scheme for dealing with abusive claims. Ratio |
Given that new scheme, there is no longer the same need to adopt the former interpretation and, indeed, the one now adopted fits the new context better. Ratio |
I am afraid that I have reached a different conclusion from the other members of the Court. Ratio |
There is no need to explain my views in detail as it will make no difference to the result. Ratio |
We are concerned with the meaning of the word claim in section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002. Ratio |
When that Act was passed, it had been understood since 1996 that in this context the word claim referred to a first claim, or to a second or subsequent claim which was different from any earlier claim, but not to a second or subsequent claim which was merely repetitious of an earlier claim. Ratio |
This eminently sensible conclusion had been reached by a Court of Appeal led by Sir Thomas Bingham MR in R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768. Ratio |
It is a well-known principle of statutory interpretation that when Parliament re-enacts words which have already been the subject of judicial interpretation it intends them to have the same meaning. Ratio |
There was no need, therefore, for Parliament to spell out what it meant by a claim in section 92(4)(a). RPC |
It was already well-known. RPC |
In Onibiyo the Court also considered whether the decision that a claim was a claim was a question of precedent fact for the court to decide or a question for the Secretary of State to decide subject to challenge on the usual judicial review grounds. Ratio |
It was not necessary to decide this question in that case, but the Master of the Rolls inclined to the latter view. Ratio |
This was adopted by the Court of Appeal in later cases: see eg WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, [2007] Imm A R 337; R (AK) (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 447. Ratio |
Rule 353 of the Immigration Rules sets out the test which the Secretary of State applies in making his decision. Ratio |
It should not be thought, however, that Miss Laings argument depends upon the existence and wording of rule 353. Ratio |
That merely provides for how the Secretary of State reaches his decision as to whether or not a claim is a claim. Ratio |
It is not the end of the matter. Ratio |
The Secretary of States test might come under attack for not reflecting the acid test laid down by the Master of the Rolls in Onibiyo. Ratio |
His conclusion reached in an individual case might come under attack on Wednesbury or other conventional grounds. Ratio |
The conclusion of the Court of Appeal, that this is not a question of precedent fact, to be determined by the appellate authorities and ultimately by the courts, might be challenged in the Supreme Court. Ratio |
Miss Laings argument is simply that when Parliament enacted section 92(4)(a) of the 2002 Act it thought that the meaning of an asylum claim, or a human rights claim, was already well established and did not include a claim which was merely repetitious of an earlier one. Ratio |
She is not relying on rule 353 to construe the 2002 Act. Ratio |
I am not persuaded by Mr Husains argument, attractively though it was put, that the new powers under sections 94 and 96 to restrict or deny appeals put such an entirely new complexion on matters that Parliament is to be taken to have abandoned the old meaning of claim without saying so. Ratio |
This would be astonishing given that it is apparently common ground that neither of these claims would have been certifiable under either section. Ratio |
Section 94 removes the right of in-country (but not out-country) appeal if an asylum or human rights claim is clearly unfounded. Ratio |
Yet apparently it is not suggested that the fact that a claim has been made previously and rejected necessarily means that it is clearly unfounded. Ratio |
Section 96 removes the right of appeal altogether if a claim or application raises matters which could have been raised on an appeal against an earlier decision. Ratio |
This does not deal with a claim which raises exactly the same matters as were rejected on an earlier occasion. Ratio |
So it is common ground that these new powers are not apt to cater for repetitious claims. Ratio |
If so, I cannot understand how Parliament, by introducing them, can be taken to have departed from an established interpretation which was designed to deal with a different problem. Ratio |
Nor am I persuaded by the argument that, if an asylum or human rights claim is certified under section 94, the claimant can still raise his asylum or human rights arguments in an out-of-country appeal, but that otherwise section 95 prevents a person from raising asylum or human rights grounds from outside the country. ... |
A person whose claim is certified under section 94 is denied any right of appeal in this country, but may appeal from outside. Ratio |
It is only right in those circumstances that he should be able to appeal on the same grounds that he could have raised in this country. Ratio |
A person whose claim is not a claim at all, because essentially the same claim has already been determined, has already enjoyed rights of appeal on asylum or human rights grounds in this country. Ratio |
There is no reason to give him a second bite at the cherry whether here or abroad. Ratio |
This country is bound not to expel people in breach of their human rights or when they have a well-founded fear of persecution in their home country. Ratio |
We must of course have a fair system for deciding whether expulsion will be in breach of those obligations. Ratio |
An initial decision followed by an appeal system in this country is sufficient to do this. Ratio |
This country is not bound to allow people to make essentially the same claim time and time again as a way of staving off their departure. Ratio |
The interpretation put forward by Miss Laing accords with our international obligations, as well as with principle and practicality. Ratio |
I would have allowed this appeal. RPC |
I have had the advantage of reading in draft the judgment of Lord Hope and am in full agreement with him that these appeals should be dismissed. RPC |
I would make it clear, however, that this is not a conclusion at which I readily arrived and I reached it only on the basis that, as Mr Husain in his enticing submissions readily accepted, the statutory solution to the problem of abuse created by the making of repeat asylum claims lies not in construing an asylum claim... |
True it is, as observed by Lord Hope in paragraph 29 of his judgment (and noted also at paragraph 13 of Sedley LJs judgment in the Court of Appeal [2009] 2 WLR 1370), that it is common ground between the parties that the present cases are not certifiable under either of these sections. Ratio |
That, however, as I understand it, is solely because, so far as section 94 is concerned, it applies only where the appellant has made an asylum claim or a human rights claim (or both) (subsection 1). Ratio |
By the same token that, on the Secretary of States argument, a repeat claim does not fall within those words in section 92 (4)(a), so he contends that it does not do so for section 94 purposes. Ratio |
Given, however, as Mr Husain submits and I would accept, that a repeat claim does involve making a claim for the purposes of section 92(4)(a), so too it enables the Secretary of State to certify it as clearly unfounded if he so regards it under section 94. Ratio |
Moreover, consistently with what the House said in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348 (Lord Neubergers views expressed at paragraphs 80-81 of his opinion being determinative on this point), there will be precious few cases in which that test differs from the rule 353 test as to wh... |
The major reason why finally I am persuaded that the respondents approach is the correct one is that, so far from leaving the critical words an asylum claim in section 92(4)(a) to be construed as the Court of Appeal in Onibiyo construed a claim for asylum in the 1993 Act, Parliament in the 2002 Act not only made expres... |
Sir Thomas Bingham MR in Onibiyo had said (at pp783-784): 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 clai... |
[Ex]cluding material on which the claimant could reasonably have been expected to rely in the earlier claim is now expressly dealt with by section 96. Ratio |
As already explained, ordinary repeat claims fall to be excluded under section 94. Ratio |
As Lord Hope points out, moreover, there is one very clear advantage in providing for any abuse by making repeat claims to be dealt with by section 94 rather than rule 353: by virtue of sections 94(9), 95 and 84(1)(g) it allows an out of country appeal to be brought on human rights grounds when otherwise that would not... |
For these reasons, therefore, which in large part echo those given in Lord Hopes altogether fuller judgment, I too would dismiss these appeals. RPC |
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