Secretary of State for the Home Department v Thirukumar & Ors

For the statutory time limit governing refusal of leave to enter, an examination is not concluded merely because an asylum application has been referred to the Home Office or because the Home Office has made its decision. It remains open until the immigration officer has received all relevant information and completed any further interview needed to decide whether to grant or refuse leave.

In asylum cases, fairness requires a meaningful opportunity to respond. The applicant must be directed to the considerations which presently defeat the application and must be reminded of, or preferably shown, the answers previously given.

Four young Tamil men sought leave to enter the United Kingdom as political refugees. Their applications were referred to the Home Office under rule 73 of the Immigration Rules (HC 169). After delays of between three weeks and fourteen months, immigration officers interviewed them again and served notices refusing leave to enter.

The Divisional Court quashed the refusals on two grounds: the statutory time limit in paragraph 6(1) of Schedule 2 to the Immigration Act 1971 had expired, and the procedure was unfair. The Secretary of State appealed. The central issues were when the examination ended for the purposes of paragraph 6(1), and what fairness required before refusal where the Home Office had rejected an asylum claim.

1. Disposition. The appeals were dismissed. The refusals of leave to enter were set aside, and the applications were left for reconsideration by the immigration officers and the Home Office within their respective powers and duties. Leave to appeal to the House of Lords was refused.
2. Statutory time limit. The Master of the Rolls, with whom Mann LJ agreed on this point, held that an immigration officer’s examination is concluded only when all relevant information needed for the decision is available. An interview is only part of the examination. Investigations and communications with the Home Office may also form part of it. The further interviews were therefore part of the continuing examination, and paragraph 6(1) of Schedule 2 to the Immigration Act 1971 did not operate.
3. Fairness. All three members of the court accepted that asylum decisions require the highest standards of fairness. A further opportunity to make representations is meaningful only if the applicant is directed to the considerations which, on the information then available, will defeat the claim. An opportunity to supplement earlier answers is meaningful only if the applicant is reminded of, or preferably shown, those answers. This was especially important where a long period had elapsed, but was required even after a shorter interval because of interpretation difficulties and the strain of the initial interview.
4. Separate opinion on the time issue. Bingham LJ would have allowed the appeals on the paragraph 6(1) issue. He regarded the fourth answer as correct because the evidence established that the further interviews were genuine opportunities for additional material to be referred back to the Home Office. He doubted whether R v Chief Immigration Officer, Manchester Airport, ex parte Insah Begum [1973] 1 WLR 141 stated a generally applicable or correct rule under the 1971 Act, and no longer regarded a second reason previously given in R v Secretary of State for the Home Department ex parte V. [1988] Imm AR 561 as sustainable. He nevertheless dismissed the appeals on fairness grounds and agreed with the final orders.
5. The suggested argument that all young male Tamils aged between 21 and 35 formed a Convention refugee group had to be considered on reconsideration. The court expressed no view on whether any respondent qualified for asylum or had another ground for admission.

• Court of Appeal (Civil Division): [1989] EWCA Civ 12 dismissed the Secretary of State’s appeals and affirmed the setting aside of the refusals of leave to enter, leaving the applications for reconsideration.
• Divisional Court of the Queen’s Bench Division: quashed the refusals of leave to enter and the decisions refusing asylum, holding that paragraph 6(1) of Schedule 2 to the Immigration Act 1971 had been breached and that the procedure was unfair.