R v Secretary of State for the Home Department, Ex parte Onibiyo (Onibiyo, Ex parte)

A person whose earlier asylum claim and appeal have failed may nevertheless make a further claim for asylum without first leaving the United Kingdom. The earlier refusal does not qualify the continuing duty of non-refoulement under the Convention relating to the Status of Refugees 1951.

A further claim must be materially different from the earlier one. Material which could reasonably have been relied on before is excluded. The decisive question is whether the new claim has a realistic prospect of a favourable decision despite the earlier refusal. The Secretary of State decides that question in the first instance, subject to judicial review on Wednesbury grounds.

The applicant, a Nigerian national liable to deportation, had unsuccessfully claimed asylum in March 1995 and exhausted his statutory appeal rights. After his father was removed to Nigeria and disappeared, he submitted further material and asserted a new asylum claim based on political opinion and membership of a particular social group.

The Secretary of State treated the material as further information supporting the original claim, refused to revoke the deportation order, and said that no new appeal lay. Latham J dismissed the applicant’s application for judicial review. The appeal concerned whether a second claim for asylum could be made during one uninterrupted stay in the United Kingdom and, if so, whether the later representations amounted to such a claim.

1. The appeal was unanimously dismissed. The Master of the Rolls gave the leading judgment, with which Roch and Swinton Thomas LJJ agreed.

2. The United Kingdom’s obligation under article 33 of the Convention relating to the Status of Refugees 1951 continues until return. A prior unsuccessful asylum claim neither modifies that obligation nor prevents a person from making a later claim for asylum. The statutory scheme did not require the person to leave and re-enter the United Kingdom before doing so.

3. A later claim is fresh only if, when compared with the claim previously rejected, it is sufficiently different to give a realistic prospect that it could receive a favourable decision. Material which the claimant could reasonably have been expected to deploy earlier must be excluded. The court approved the essential-ingredients analysis in Manvinder Singh v Secretary of State for the Home Department.

4. The Master of the Rolls expressed a tentative view that whether representations amount to a fresh claim is a judgment entrusted initially to the Secretary of State, rather than an objective precedent fact for the court. The decision is reviewable on Wednesbury grounds, not merely irrationality. The applicant had not advanced a sustainable challenge on that basis.

5. In any event, if the court itself applied the fresh-claim test, the later material did not overcome the fundamental absence of a plausible basis for official persecution of an applicant who had left Nigeria aged 11 and had pursued no political activity. It therefore did not constitute a fresh claim.

6. It was not irrational to proceed with the applicant’s removal while his mother’s separate asylum claim remained undecided. Adult family members’ independent claims, made at different times, could rationally be determined separately.

1. Court of Appeal (Civil Division): dismissed the applicant’s appeal from Latham J: [1996] EWCA Civ 1338.
2. High Court (Latham J): on 19 January 1996 dismissed the application for judicial review of the refusal to treat the later representations as a fresh asylum claim and of the removal directions.
3. High Court (Dyson J): granted leave to move for judicial review.