Cakabay v Secretary Of State For Home Department

After an asylum claim has been refused and the appellate process exhausted, further representations do not create a merits appeal merely because the applicant says they amount to a fresh claim. Under Immigration Rules rule 346, the Secretary of State must assess whether the later material is sufficiently different and gives a realistic prospect of success, disregarding insignificant, incredible or previously available material. The categorisation decision is not appealable under section 8(1) of the Asylum and Immigration Appeals Act 1993. It is reviewable by judicial review on Wednesbury grounds. Whether a fresh claim exists is an evaluative judgment, not an objective precedent fact for the court to decide afresh.

Mr Cakabay's first asylum claim was refused. His appeal to a special adjudicator was dismissed, the Immigration Appeal Tribunal refused leave to appeal, and permission to seek judicial review was refused.

Three days later, his solicitors made further representations claiming asylum again. The Secretary of State decided under Immigration Rule 346 that the representations did not amount to a fresh claim. Two judicial review proceedings followed before Lightman J. In Cakabay No 3, the issue was whether the categorisation decision could be challenged by appeal to the Immigration Appellate Authority. In Cakabay No 2, the issue was whether the court should decide for itself, as a matter of precedent fact, whether the representations constituted a fresh claim, or should apply the Wednesbury standard.

1. Disposition. Schiemann LJ gave the principal judgment. Potter LJ agreed with the reasons of Schiemann LJ and Peter Gibson LJ. Gibson LJ gave separate concurring reasons. The court unanimously dismissed both appeals.
2. No merits appeal. The statutory right of appeal under section 8(1) of the Asylum and Immigration Appeals Act 1993 is an appeal against an immigration officer's refusal of leave to enter. The Secretary of State's decision that further representations do not constitute a fresh asylum claim is not itself such a refusal. Schedule 2 paragraph 2 makes a claim for asylum a condition precedent to an appeal, but does not create a merits appeal against the categorisation decision. The proper remedy is judicial review of legality.
3. Review standard. The initial categorisation must be made by the Secretary of State. Whether later material is sufficiently different, significant and credible, and offers a realistic prospect that the asylum conditions will be satisfied, requires judgment and comparison with the earlier claim. It is not a pure question of objective fact. The court therefore rejected the precedent-fact approach and held that the decision was reviewable only on Wednesbury grounds.
4. Authorities and scrutiny. The court treated the case as closer to Bugdaycay than Khawaja. The former concerned an evaluative judgment about refugee status; the latter concerned the objective fact of illegal entry. The reasoning in Onibiyo was accepted and followed. The serious consequences of an asylum decision justify anxious scrutiny, but that scrutiny may occur within judicial review limited to Wednesbury considerations.
5. The court found it unnecessary to decide whether the Secretary of State's categorisation was correct. It was accepted that the decision was not perverse, and it was not shown to be unlawful. The appeals were dismissed with costs. The appellant's application for leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) dismissed the appeals from the decisions of Lightman J.
• High Court, Queen's Bench Division (Crown Office List) held that no merits appeal lay against the categorisation decision and that the decision was challengeable only on judicial review grounds.