Administrative law – Asylum seekers – Judicial review

R (on the application Of MN (Tanzania)) v Secretary of State for the Home Department: CA (Civ Div) (Lords Justices Kay, Moses, Sullivan): 4 March 2011

The appellant failed asylum seeker (N) appealed against a decision ([2010] EWHC 1871 (Admin)) that further representations made by her to the respondent secretary of state did not constitute a fresh claim for asylum.

N, a Tanzanian national, had entered the United Kingdom on an overseas student visa. After her leave to remain expired she unsuccessfully applied to the secretary of state for leave to remain outside the Immigration Rules on the basis that she had been diagnosed as suffering from HIV. An immigration adjudicator concluded that medical treatment for HIV was available to N in Tanzania so that neither her rights under the European Convention on Human Rights 1950 article 3 or article 8 would be breached if she was returned. N later unsuccessfully applied for asylum. Thereafter N made further representation relying upon a psychiatrist’s report stating that she suffered from depression which would be likely to worsen significantly if she was forcefully removed and that the risk of committing suicide would be high. The report also stated that N’s worsened depression would increase the risk that she would not avail herself of medical treatment in Tanzania.

The secretary of state rejected the psychiatrist’s report as constituting a fresh claim on the basis that the report failed to address adverse credibility findings made against N by the Asylum and Immigration Tribunal and that N’s fears, which were purportedly increasing her risk of suicide, about the availability of treatment for her HIV in Tanzania were not objectively well-founded. The High Court applying a Wednesbury test subject to anxious scrutiny held that the secretary of state was entitled to reach the decision that she had. Issues arose as to (i) the test to be applied on an application for judicial review of a refusal of the secretary of state to treat further representations as a fresh claim pursuant to rule 353 of the Immigration Rules; (ii) whether N’s further representations constituted a fresh asylum claim.

Held: (1) The ratio of R (on the application of YH (Iraq)) v Secretary of State for the Home Department (2010) EWCA Civ 116, (2010) 4 All ER 448 was confined to cases concerning whether the secretary of state was entitled under the Nationality, Immigration and Asylum Act 2002 section 94 to certify asylum and human rights claims as being clearly unfounded, YH considered. The clash of authorities in relation to r.353 cases was really between R (on the application of TK) v Secretary of State for the Home Department (2009) EWCA Civ 1550 and KH (Afghanistan) v Secretary of State for the Home Department (2009) EWCA Civ 1354, Times, January 19, 2010. Of those authorities TK was to be followed as: (a) it was identified specifically to address the question of the judicial review test in rule 353 cases after ZT (Kosovo) v Secretary of State for the Home Department (2009) UKHL 6, (2009) 1 WLR 348 and in the light of obiter remarks in R (on the application of TR (Sri Lanka)) v Secretary of State for the Home Department (2008) EWCA Civ 1549. That issue appeared to have been no more than a secondary issue in KH, TR considered, TK and ZT followed, KH not followed; (b) a careful analysis of ZT did not provide authority for the proposition that anything other than Wednesbury test subject to anxious scrutiny was the correct test for review in r.353 cases, TK followed; (c) to the extent that Longmore LJ in KH reached the contrary conclusion, he did so on the basis that ‘it is now clear from ZT (Kosovo)’ but ZT did not bear that reading. To have a differential approach as between rule 353 and section 94 cases was not illogical. In rule 353 cases the applicant had already had full recourse to the immigration appellate system. Rule 353 was in the form of an extra-statutory concession. In section 94 cases, the secretary of state was empowered to deny the applicant access to the immigration appellate system at the outset. A more protective approach to review in that situation was understandable. Accordingly whilst an assimilation of the tests might be considered to be justifiable the court was, on the authorities, bound to continue to apply WM (Democratic Republic of Congo) v Secretary of State for the Home Department (2006) EWCA Civ 1495, (2007) Imm AR 337 and TK in r.353 cases, WM and TK followed (see paragraphs 14-16 of judgment).

(2) The view of the secretary of state that N's HIV status afforded her no reasonable prospect of success before an immigration judge was one that she was entitled to reach and was inevitable, D v United Kingdom (30240/96) (1997) 24 EHRR 423 ECHR considered and N v Secretary of State for the Home Department (2005) UKHL 31, (2005) 2 AC 296 followed. The question of suicide risk had to be considered by reference to the guidance in J v Secretary of State for the Home Department (2005) EWCA Civ 629, (2005) Imm AR 409, J followed. Having regard to clear objective evidence that Tanzania had mental health facilities capable of addressing both N’s mental health problems and her HIV status the secretary of state was entitled to conclude that an appeal by N to an immigration judge raising suicide risk based on article 3 and article 8 would have had no realistic prospect of success. Accordingly the High Court was entitled to reach the decision that it did, (paragraphs 28-32).

Appeal dismissed.

Ian MacDonald QC, Mikhil Karnik (instructed by Fadiga & Co) for the appellant; Joanne Clement (instructed by treasury solicitor) for the respondent.