(back to preceding text)

28.  The factual background to the case can be stated shortly. On 2 December 2005 the Secretary of State rejected the respondent’s asylum and human rights claims and certified that they were clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002. On 13 December 2005 the respondent was served with a decision under section 82(2)(h) to remove him from the United Kingdom as an illegal immigrant. On 20 January 2006 and again on 23 August 2006 he made further submissions in support of his asylum and human rights claims. On 2 November 2006 the Secretary of State maintained her certification of the claims under section 94. It is still open to the respondent to appeal under section 82(1) against the decision to reject his claims. But the effect of the section 94 certificates is that he cannot do this while he remains in the United Kingdom, where he still is. He can only bring an appeal under section 82(1) while he is out of the country: see section 94(9). So he sought to challenge the certificates by bringing them under judicial review. Collins J refused permission at an oral hearing, but Sir Henry Brooke granted permission to appeal.

29.  The Court of Appeal held that when she considered the further submissions the Secretary of State had adopted the wrong procedure. Sedley LJ said that she should have considered them under rule 353 and that, if she accepted them, the respondent would then have had an in-country right of appeal against their rejection as fresh claims under that rule: [2008] EWCA Civ 14, para 18. The refusal letter should be quashed so that the renewed application could be considered under that rule. The Secretary of State submits that this is wrong. She maintains that this is a section 94 case, and that it is with reference to the test that that section lays down that the question whether her decision was sound or not should be considered.

30.  The parties are agreed that, on these facts, the following issues arise. First, was the Secretary of State right, in the light of those further submissions and all the material that was then before her, to consider under section 94 whether to maintain her certificates that the claims were clearly unfounded? Or was she bound, as the Court of Appeal thought, to consider them under rule 353 of the Immigration Rules? I shall refer to this as the procedure issue. Secondly, what is the standard of scrutiny that the court must adopt in a judicial review of a certificate by the Secretary of State under section 94(2) of the 2002 Act? I shall refer to this as the scrutiny issue.

The procedure issue

31.  My noble and learned friends say that the critical issue as to the application of rule 353 relates to the words “and any appeal relating to that claim is no longer pending". Those words are, of course, important. But in my opinion their significance cannot be determined without examining the rest of the rule and the context in which it is designed to operate.

32.  The first thing to notice about the rest of rule 353 is that it bears the heading “Fresh Claims", and that it is followed by para 353A which was inserted by HC 82/2007. The whole context in which rule 353, as amended by HC 420/2008, appears is as follows:

“Fresh claims

353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i)  had not already been considered; and

(ii)  taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.

This paragraph does not apply to submissions made overseas.”

Rule 353A was not referred to by counsel on either side. But it ought not to be overlooked, as it refers to cases which fall outside rule 353: see the words “or otherwise” at the end of the second sentence.

33.  The next thing to notice about the rest of rule 353 are the directions that it gives to the decision maker. In my opinion it is the directions in the middle of the rule, not the opening words, that tell one what this rule is all about. The decision maker is asked to do two things. First, he is to consider whether or not to accept the further submissions. Nothing more is said about what he is to do if he decides to accept them, no doubt because this was thought to be unnecessary. If he accepts them he will withdraw the direction for the claimant’s removal because he will have concluded that the claim is well founded. It is what he is to do if he rejects them that gives the clue to the purpose of the rule, and to why it was thought to be necessary. The decision maker who rejects has a further task to perform. He is directed to consider whether the further submissions amount to a fresh claim. Why a “fresh” claim? This is the key. Section 77(1) provides that a person may not be removed from or required to leave the United Kingdom while his claim for asylum is still pending, and section 78 provides that he may not be removed or required to leave while his appeal under section 82(1) is still pending. The words “fresh claim” show that the assumption on which the rule proceeds is that, for whatever reason, the person whose further submissions are being considered no longer has either a live claim or a pending appeal. He needs a fresh claim if he is not to be at risk of being removed or required to leave immediately. And a determination that he has a fresh claim will enable him to appeal against the decision which the decision maker has just taken that his claim must be rejected. The purpose of the rule, as this direction and its heading indicate, is to enable the further submissions to be franked as a fresh claim if they merit this treatment. The effect of doing this will be to enable the applicant to exercise his right to not to be removed while his fresh claim is still pending and to enable him to appeal under section 82(1) against the decision maker’s decision to reject his claim.

34.  Rule 353A, on the other hand, covers cases where further submissions are being considered “otherwise” than under rule 353. Its purpose is to make it clear that an applicant who has submitted further submissions in situations other than those contemplated by rule 353 is not to be removed before the Secretary of State has considered them. A rule to this effect is needed, to show that the protection against removal that section 77(1) provides while a claim for asylum is still pending applies in those cases too although the claim that was originally made has been rejected. As there is nothing in this rule to indicate the contrary, it applies to section 94 cases as well as those that have not been certified as clearly unfounded under that section. Applications in section 94 too are protected by this rule against removal before their further submissions, if any, have been considered by the Secretary of State.

35.  The next thing to notice about the rest of rule 353 is that the test which the decision maker is directed to apply in order to determine whether or not the further submissions amount to a fresh claim is whether, taken together with the previously considered material, their content creates “a realistic prospect of success". The words “clearly unfounded” that section 94 uses do not appear here. Given that the effect of a decision that their content amounts to a fresh claim is that there will be a right not to be removed from the United Kingdom while the claim and any appeal is still pending, the application of the “clearly unfounded” test which determines whether he can remain in the United Kingdom for the purposes of an appeal would be inappropriate. Moreover a person who makes further submissions while he is still in this country after his claim has been certified under section 94 still has a claim that can be taken to appeal, albeit not until he has moved overseas. He has no need for his claim to be certified as a “fresh claim” to enable him to do this, and he is protected against removal while his further submissions are being considered by rule 353A. For these reasons I consider that the test that rule 353 sets out does not require the section 94 question to be determined by the person who is acting as the decision maker under that rule.

36.  Then there is the reference in the first sentence of rule 353 to an appeal relating to the claim that “is no longer pending". There is no doubt that the effect of these words is that the rule does not apply where such an appeal is pending. The question is what is to be made of the fact that no mention is made of the situation where an appeal is still open but has not yet been brought. I think that this is because there is still an opportunity in that situation for any further submissions to be considered by the Secretary of State as part of a claim that is still pending. Rule 353A addresses this situation, because it ensures that the applicant cannot be removed while this is being done. On the other hand, if the case has reached the stage of an appeal under section 82(1) and the appellant makes a statement under section 120, the adjudicator must consider any matter raised in it which constitutes a ground of appeal of a kind listed in section 84(1), whether or not that statement was made before or after the appeal was commenced: section 85(2) and (3). He may also consider evidence about any matter which is relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision: section 85(4). These provisions provide ample scope for the making of further submissions in the course of an appeal in addition to those that were before the decision taker before the appeal was brought.

37.  It seems to be clear therefore that the need for rule 353 arises only where, because, the claim is no longer alive and an appeal is no longer pending, a determination that this is a fresh claim is required for the person to appeal. MacDonald, Immigration Law and Practice (7th ed, 2008), para 12.19 explains the origin of rule 353. The general rule is that repeated applications for asylum on the same basis will not generate a fresh right of appeal. But it has been held that an asylum seeker has the right to make a fresh application: R v Secretary of State for the Home Department, Ex p Onibiyo [1996] Imm AR 370. He may do so, for example, if he leaves the United Kingdom and then returns to this country and makes a further asylum claim: MacDonald, para 12-177(iv). It is this right that has now been reflected and provided for by the rule. Its object is not, as my noble and learned friend Lord Brown of Eaton-under-Heywood says in para 74, to prevent fresh in-country rights of appeal arising in the case of re-asserted but still hopeless claims. It is to enable fresh claims to be brought, provided they are truly fresh claims because there is a realistic prospect of success if the decision to reject them were to be taken to appeal.

38.  The importance of keeping the rule 353 and the section 94 issues separate has been recognised by the UK Border Agency’s Asylum Policy Instructions (“APIs”). The APIs are regarded in practice as an invaluable guide to the latest Home Office practice in the interpretation of the Rules: MacDonald, Immigration Law and Practice, para 1.37. They are available to the public on the government’s website. The most up to date link is:

http://ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/

asylumpolicyinstructions/. Two of the many Asylum Policy Instructions (“APIs”) that have been issued are relevant to this issue. I regret the fact that they were not referred to by counsel for the Secretary of State in the course of his submissions to your Lordships. I believe that they would have helped to explain why he stressed the importance of keeping these procedures separate, and why he said that the Court of Appeal’s decision distorted a coherent decision making scheme and was liable to lead to confusion among case workers and applicants. Technically, of course, the APIs are not an aid to the construction of rules 353 and 353A. But it would be wrong for your Lordships to ignore them, as they are both part of the system which the Secretary of State has set up for the handling in practice of claims by decision makers. In my opinion your Lordships should be slow to interfere with that system unless this is plainly necessary, and certainly not without a clear understanding of the context in which rule 353 was designed to operate.

39.  I should make it clear that my reason for referring to the APIs is not to use them as an aid to the construction of the language that rule 353 uses, as I am in agreement with all your Lordships as to what is meant by the words “and any appeal relating to that claim is no longer pending.” It is to explain the purpose of the rule and the context in which it is designed to operate. This is a practical matter, as to which the APIs can act as a useful guide. They show that your Lordships’ ruling that there is no difference between the approaches required by section 94 and rule 353, which ignores rule 353A, is at variance with the way the system is operated in practice. That system recognises the heightened significance of a decision to certify under section 94, as it excludes the possibility of an in-country appeal. In R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36; [2003] 1 AC 920, para 14, Lord Bingham of Cornhill drew attention to the care that must be taken in conducting this exercise: see also my own observations in paras 32-34. It also recognises that rule 353 is designed only for in-country cases that have reached the stage that it contemplates, not for those that are the subject of a section 94 certificate.

40.  The API on further submissions states in its introduction that it provides guidance on applying para 353 of the Immigration Rules and certifying claims under section 96 of the 2002 Act. That section excludes the right of appeal in cases where the issue ought to have been dealt with in an earlier appeal against a previous immigration decision. The API concludes with this instruction about section 94 certification:

“Section 94 certification should never be considered in a case where paragraph 353 applies. This is because all applicants whose applications have been certified under section 94 are unable to exercise their appeal rights until they have left the United Kingdom. This is inconsistent with the requirement that paragraph 353 can only be applied when an applicant is Appeal Rights Exhausted.” [emphasis in the original]

The phrase “Appeal Rights Exhausted” is explained in an earlier section of the API under headings “Criteria for applying paragraph 353” and “No Appeal Pending against refusal of previous Asylum/Human Rights Claim", which states:

“In addition, paragraph 353 can only be applied where there is no appeal pending against the refusal of the earlier claim. If there is an appeal pending, the applicant should, where possible, raise all relevant matters in the context of that appeal. If there is no appeal pending, either because the applicant never brought an appeal or because the appeal has been dismissed, withdrawn, abandoned or has lapsed, the case owner should apply paragraph 353.”

Under the heading “New material raised before appeal hearing” it states:

“Where an applicant raises new material after a decision has been made on his asylum and/or human rights claim but before his appeal is heard, paragraph 353 should not be applied. The applicant should raise this material in the context of his appeal. However, if it has not been possible to raise this material during the course of his appeal for any reason, the case owner should consider it after the conclusion of the appeal and apply paragraph 353.”

41.  The API on certification under section 94 states in its introduction that it is concerned with the application of section 94 by caseworkers. Under the heading “key points” it states:

“Only caseworkers (including senior caseworkers) who have received the training on non-suspensive appeals certification may take a decision to certify a claim. All decisions to certify a claim under section 94 will be subject to a second pair of eyes.”

Under the heading “further submissions in cases where section 94 certificate has been issued” it states:

“If, as a result of the further submissions, it is appropriate to reverse the refusal, the certificate should be withdrawn and leave granted as appropriate.”

The instruction as to what the caseworker is to do if he decides to maintain the certificate concludes with these words:

“Paragraph 353 of the Immigration Rules, on further representations and fresh claims, should not be applied or referred to.”

42.  It was submitted for the Secretary of State that the reference to the situation where any appeal is no longer pending encompasses the situation where an appeal is still open but has not yet been brought. I do not think that the wording of the rule has the effect of extending its application to that situation. Section 104(1) of the 2002 Act provides that an appeal under section 82(1) is “pending” during the period beginning when it is instituted and ending when it is finally determined, withdrawn or abandoned or has lapsed in the circumstances referred to in section 99. The Immigration Rules were made under section 106 of the 2002 Act, so one would expect words used by them to have the same meaning as in the Act itself. An example of the use of the expression “pending” is to be found in section 82(3), which provides:

“A variation or revocation of the kind referred to in subsection (2)(e) or (f) shall not have effect while an appeal under subsection (1) against that variation or revocation -

(a)  could be brought (ignoring any possibility of an appeal out of time with permission), or

(b)  is pending.”

The rule makes no reference to the situation where an appeal could still be brought but is not yet pending within the meaning of that expression as defined by section 104. I would hold therefore that it does not apply to that situation at all. The reason is that, as an appeal in which consideration to be given to new points is still open, there is no need for a rule that enables consideration to be given to the question whether the further submissions amount to a fresh claim. What is needed is protection against removal while the further submissions are being considered. This is provided by rule 353A.

43.  It seems to me that the guiding principle as to the application of a rule of this kind is to determine the purpose which it was intended to serve. It is clear from its opening words, and from what follows, that rule 353 was intended to deal with the situation where an appeal could no longer be brought or, having been brought, was no longer pending. In that situation it was necessary to provide a means for determining whether, if the Secretary of State was not persuaded to alter the decision that had already been taken, the further submissions amounted to a fresh claim. If they did not, there would be no reason for re-opening the matter. But if they did amount to a fresh claim, they would have to be dealt with as such and the right of appeal under Part 5 of the 2002 Act would then have to have been made available. Rule 353 provides a means of achieving this by franking the further material as requiring a fresh determination in accordance with the procedures that the statutes lay down. It was clearly necessary for provision to be made as to how cases where an appeal had been heard and disposed of should be dealt with. The same consideration applies to cases where an appeal is no longer open because the time for bringing it has expired. The rule does not mention that situation expressly, but it must be taken to be covered by the reference to the situation where any appeal is no longer pending. It is the absence of any opportunity for the issues to be considered as part of a claim that is still pending or of an appeal that gives rise to the need for the rule.

44.  I do not think however that the rule has any purpose to serve in a case where an appeal is still open but is not yet pending. Where an in-country appeal is available the time limits are short: 5 days after he is served with the notice where the claimant is in detention under the Immigration Acts, 10 days in any other case. It is not unusual for further submissions to be made within a very short time after the immigration decision is made. It would be quite unnecessary in that situation for the decision maker to be required to go through the procedure set out in rule 353 before it is known whether or not there will be an appeal. If there is an appeal the submissions can be considered by the adjudicator: see para 36. The need for the procedure that the rule describes will arise however if and when the time limit is allowed to expire. Protection against removal in the meantime is afforded by rule 353A.

45.  In out-of-country appeals, where the Secretary of State has certified that the claim is clearly unfounded, the time limit is 28 days but it does not begin to run until the claimant has left the United Kingdom. But there is no need for a procedure of the kind that rule 353 describes to deal with that situation. While the claimant remains in this country any further submissions he makes will be directed to the question whether or not his claim is clearly unfounded. As this issue is still in the hands of the Secretary of State it can be dealt with under section 94, and protection against removal will be afforded by rule 353A. When he leaves this country the issue will no longer be in the hands of the in-country decision maker: see the last sentence of rule 353A. He will however have the opportunity to raise the further submissions as part of his out-of-country appeal.

46.  As for the question whether there is any material distinction between a claim which is not held to have “a realistic prospect of success” and one which is “clearly unfounded", I think that the answer to it is that it is a question of degree. If, as I approach a traffic light controlled road junction in my motor car, the lights turn to amber when I am just a few yards short of it, I will keep going because there is “a reasonable prospect” that I will be through the junction well before the lights turn to red. The further back I am from it, the more likely it is that I will stop because I have not got beyond the point where I can assume that I will get through the lights in time. Up to that point such an assumption will “clearly [be] unfounded". Of course the greater includes the less. One cannot say that a claim which is clearly unfounded will have a reasonable prospect of success. But the reverse is not so. The whole point of the test that section 94 lays down is that, for the reasons that were referred to in R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920, it sets a more demanding test for the issuing of certificates whose effect is to deprive claimants of the opportunity of an in-country appeal. The distinction is between claims which are manifestly (or “clearly”) unfounded and those which merit full consideration by taking their rejection to appeal in this country.

47.  For these reasons I would answer the first of the three questions that Lord Phillips refers to in para 12 of his opinion in the negative. If that answer is given to it, the second and third questions will be superseded.

48.  The answer that your Lordships propose to give to the first question will, I fear, cause significant problems in practice for the Home Office. I cannot subscribe to the view that this is a non-issue. The APIs show that this is not so. In my opinion they cannot survive your Lordships’ decision in their present form. Either they will have to be re-drafted to give effect to it, or rule 353 will have to be amended to make it clear (i) that it does not apply where an appeal has not yet been brought and (ii) that the test for certification under section 94 is not relevant to a decision as to whether there is a realistic prospect of success for its purposes. A moratorium on the handing of these cases may have to be resorted to until this is done. An alternative course, however, would be just to leave things as they are. I believe that, for the reasons that I have sought to explain, further submissions in section 94 cases fall outside the scope of rule 353. The protection that is needed in their case is provided by rule 353A. It has not been suggested that there is anything wrong with the way the system works in practice. I regret that I have not been able to persuade your Lordships to join with me in subjecting it to detailed scrutiny. But the fact that you have not done so may offer some comfort to those who would prefer that it should not be disturbed.

The scrutiny issue