Kerrouche (on the application of) v Secretary of State for the Home Department (ex parte Kerrouche)

A renewed application for leave to move for judicial review fails if any critical step in an interdependent argument is not sufficiently arguable. A decision-maker’s mistaken interpretation of a convention which he treated as relevant may, in principle, be examined through ordinary public-law principles of legality and rationality. That point was assumed rather than decided. The decisive rule was temporal: the Dublin Convention did not govern an asylum application that had been made and finally determined before the Convention came into force. Its provisions link the process to the first lodging of the application and define an applicant by reference to whether a final decision has been taken. The Convention could not be used to invalidate the earlier refusal or prevent its implementation.

An Algerian national entered the United Kingdom in 1995 and claimed asylum in May 1996. The Secretary of State refused the claim, the Special Adjudicator dismissed the appeal, Tucker J dismissed judicial review proceedings, and the Court of Appeal dismissed a further appeal in July 1997. A petition for leave to appeal to the House of Lords was refused in October 1997.

After the Dublin Convention came into force on 1 September 1997, the applicant asked the Secretary of State to reconsider his position before removal to France. The Secretary of State declined, stating that the Convention did not apply to the earlier claim. Kay J refused leave on 15 December 1997. The issue on the renewed application was whether the Convention applied to an asylum claim finally determined before its commencement and whether the Secretary of State’s interpretation gave rise to an arguable public-law error.

Disposition. The Court of Appeal unanimously refused the renewed application for leave to move for judicial review.

1. Hobhouse LJ accepted, for present purposes, that a decision-maker’s erroneous interpretation of a convention which he had treated as relevant could be examined under ordinary principles of judicial review, including legality and rationality. The court referred to R v Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839 and the Divisional Court decisions in Ex parte Zighem and Ex parte Watson. Since the Secretary of State had not been called upon, this point was assumed to be arguable and was not finally decided.
2. The decisive issue was whether the Convention applied to an asylum claim made in May 1996 and finally refused by June 1996, before the Convention came into force. Articles 1(b), 1(c) and 1(d), read with Articles 3(6) and 11(3), showed that the Convention’s machinery concerned applications still requiring determination. The responsibility process began when the application was first lodged, and responsibility was determined by the situation existing at that time.
3. Accordingly, there was no room to apply the Convention to an application already finally determined before commencement. The attempt to use it to invalidate the earlier refusal and prevent its implementation was misconceived. Millett LJ emphasised that a question concerning applications pending at commencement might merit consideration, but the present contention concerning a finally determined application was unarguable. Sir Roger Parker agreed with both judgments.

The prior refusal of asylum could therefore be carried into effect. The application was refused, with the appellant’s costs subject to legal aid taxation.

1. Court of Appeal (Civil Division): the renewed application for leave to move for judicial review was refused, [1997] EWCA Civ 3045.
2. Queen’s Bench Division, Kay J: leave to move for judicial review was refused on 15 December 1997.
3. House of Lords: the applicant’s petition for leave to appeal was refused in October 1997.
4. Court of Appeal: an appeal from Tucker J’s dismissal of judicial review was dismissed in July 1997.
5. Queen’s Bench Division, Tucker J: judicial review was dismissed in December 1996.
6. Special Adjudicator: the asylum appeal was dismissed on 29 August 1996, following the Secretary of State’s refusal of asylum on 12 June 1996.