Singh v Secretary of State for the Home Department

A fresh asylum claim requires a change in one or more essential ingredients of the earlier claim. Those ingredients include a well-founded fear of persecution, a fear linked to the country of origin, an identified source of persecution and the absence of effective state protection, and a Convention ground. New incidents or documents that merely provide additional evidence for the same ingredients do not create a fresh claim. The court’s observations on repeat appeals and on whether the Secretary of State or the appellate tribunal decides if a fresh claim has been made were obiter.

The appellant’s asylum claim was refused by the Secretary of State. The Special Adjudicator dismissed his appeal, and the Immigration Appeal Tribunal refused leave to appeal. After further evidence was submitted concerning attacks on members of his family, the appellant’s solicitors sought to advance a fresh claim and appeal.

The Secretary of State declined to treat the material as a fresh application. The High Court dismissed the judicial review application. The appeal concerned whether the further material constituted a fresh asylum claim. The Respondent’s notice also raised questions about repeat appeals and the identity of the decision-maker, but those questions were not necessary to the result.

Stuart-Smith LJ gave the leading judgment. Rose LJ and Sir John Balcombe agreed. The appeal was unanimously dismissed.

1. Statutory setting. The appeal provisions in the Asylum and Immigration Appeals Act 1993 provide an appeal against the relevant refusal, deportation order or removal directions. The rejection of an asylum claim is the ground of appeal, rather than the decision appealed against. The court also noted the statutory restriction on repeating a claim already rejected and dismissed on appeal.
2. Fresh-claim test. In deciding whether a later approach is a fresh asylum claim, it is necessary to identify the essential ingredients of the earlier claim and ask whether one or more has changed. The ingredients identified were: a well-founded fear of persecution; fear in relation to the country from which the applicant came; persecution by the state, or by another local group whose conduct is knowingly tolerated by the authorities, or circumstances in which the authorities refuse or are unable to provide effective protection; and persecution for reasons of race, religion, nationality, or membership of a particular social or political group.
3. Application. The appellant’s original case already included both the risk of being mistaken for his cousin and a personal risk arising from refusal to join the extremists. The later evidence concerning his father’s injury and the newspaper report supplied further evidence of why the same extremists might threaten him. It did not alter the source of the fear or the case that the Indian authorities could not provide protection. The material therefore amplified the original claim and did not create a fresh claim giving rise to a further appeal.
4. Unresolved issues. The court proceeded on the assumptions that more than one appeal could be brought and that the Special Adjudicator, rather than the Secretary of State, would decide whether a later approach was a fresh claim. Those questions were expressly unnecessary to the decision. Stuart-Smith LJ said that Lemba Kalunga v Secretary of State for the Home Department [1994] 1 IAR 585 should not be treated as binding authority on the decision-maker issue because the point had arisen after a concession. Rose LJ stated that the correctness of his earlier view remained open.

Order: appeal dismissed. Legal Aid taxation of the appellant’s costs.

1. Court of Appeal (Civil Division): dismissed the appeal from the High Court.
2. High Court (Carnwath J, 18 July 1995): dismissed the application for judicial review of the Secretary of State’s refusal to treat the later material as a fresh asylum claim and notice of appeal.
3. Immigration Appeal Tribunal (6 April 1994): refused leave to appeal from the Special Adjudicator.
4. Special Adjudicator (12 March 1994): dismissed the appellant’s asylum appeal.
5. Secretary of State for the Home Department (19 January 1994): refused the asylum claim.