Singh, R (on the application of) v Secretary of State for the Home Department

Where an asylum claimant’s later material and human-rights objections concern the same continuing removal decision, the appropriate remedy is not necessarily a further challenge to historic refusals or a renewed attempt to establish a fresh asylum claim. The court should identify the current decision capable of challenge and the effective statutory appeal route. An available Immigration Act 1971 section 65 appeal concerning removal and alleged breaches of articles 2 and 3 of the European Convention on Human Rights may subsume any practical right to have the matter treated as a fresh asylum claim. A judicial-review application directed at earlier decisions should therefore be dismissed, with any challenge to the latest decision made by a fresh application and only if no effective appeal right remains.

The applicant, an Indian Sikh, had entered the United Kingdom illegally and claimed asylum on the basis of persecution and past torture by the Punjabi police. His original claim was refused, and his appeal and application for leave to appeal were dismissed. After he produced further documentary, medical and other material, the Secretary of State referred the matter to a special adjudicator under section 21 of the Immigration Act 1971. The adjudicator gave an advisory opinion adverse to the applicant, and the Immigration Appeal Tribunal dismissed an attempted appeal for want of jurisdiction.

The Secretary of State then maintained the original refusal and declined further section 21 consideration. The applicant sought to renew judicial-review proceedings concerning both the historic decisions and the latest decision. The central issues were which decision remained open to challenge and whether an effective section 65 appeal existed concerning removal and alleged violations of articles 2 and 3 of the European Convention on Human Rights.

1. Application dismissed. The challenge to the historic decisions of 1997 and 1998 was misconceived because time had moved on. The only decision that could potentially be challenged was the Secretary of State’s decision of 26 September 2000.
2. A challenge to that latest decision could not properly be pursued through the adjourned renewal of the earlier judicial-review application. It would require a de novo application to the Administrative Court.
3. The Secretary of State’s acceptance of the special adjudicator’s advisory opinion would be the possible subject of such a challenge. The opinion addressed both refugee status and whether the later material made the claim a fresh asylum application.
4. The critical practical consideration was the probable availability of a section 65 appeal concerning the continuing intention to remove the applicant, including his contention that removal would breach articles 2 and 3 of the European Convention on Human Rights. Those appeal rights, introduced when the Human Rights Act took effect, realistically subsumed any right to establish a fresh asylum claim.
5. The applicant should therefore pursue the section 65 route for a fresh and full hearing before a special adjudicator. Only if no such appeal right existed should he seek to resurrect the matter by applying for leave out of time to challenge the 26 September 2000 decision.
6. The order was: application dismissed, with legal assessment of the applicant’s costs.

• Court of Appeal (Civil Division): The renewed application was dismissed. The court treated the 26 September 2000 decision as the only potentially challengeable decision and directed the applicant, if entitled, towards a section 65 appeal.
• Queen’s Bench Division (Administrative Court): Before Hidden J on 23 March 1998, the application was dismissed effectively by consent and was to be renewed before the Court of Appeal.