The Queen on the Application of Jian Sheng Chen v Secretary of State for the Home Department

For a certificate under the Immigration and Asylum Act 1999, section 73(8), whether a late application was made to delay removal and had no other legitimate purpose are findings of fact. An appellate court will not interfere where no arguable error of law is shown. Section 76(3), which concerns grounds raised on an appeal and exceptions to section 76(2), is irrelevant to the Secretary of State’s certification decision at that stage. The timing of wholly new grounds, after opportunities to raise them, may support those findings.

The applicant, a Chinese national, entered the United Kingdom illegally on a forged passport and claimed asylum based on a fear of persecution under China’s family-planning policy. The Secretary of State rejected the claim, and an adjudicator dismissed his appeal after he neither attended nor was represented at the hearing. He also failed to raise further grounds in response to a one-stop notice.

When removal was imminent, new solicitors raised claims based on an alleged debt to loan sharks and punishment for leaving China illegally. The Secretary of State rejected the claims and certified the application under section 73(8) of the Immigration and Asylum Act 1999, finding that its purpose was to delay removal and that it had no other legitimate purpose. The central issues were whether the certificate was lawful and whether section 76(3) required consideration at that stage.

Lord Justice Dyson delivered the leading judgment, with which Lord Justice Longmore agreed. The application was dismissed.

1. The Secretary of State was plainly entitled to certify the applicant’s late representations under section 73(8) of the Immigration and Asylum Act 1999. The findings that the purpose of the application was to delay removal and that it had no other legitimate purpose were findings of fact. No arguable error of law in reaching them had been shown.
2. The circumstances strongly supported those findings. The applicant had claimed asylum on a narrow and specific ground, had been disbelieved by both the Secretary of State and the adjudicator, and had been given at least two opportunities to raise any further grounds. He raised two wholly new grounds only on the day, or possibly the day before, his removal. It would have been surprising if the Secretary of State had reached any other conclusion.
3. The argument based on section 76(3) failed. That provision concerns appeals and provides exceptions to the rule in section 76(2), under which an applicant may not rely on a ground in an appeal unless it was mentioned in his statement. Section 76(3) was irrelevant to the Secretary of State’s consideration of certification at this stage. In any event, the factual conclusion was unassailable.
4. The renewed application was rejected. The application was dismissed, with legal aid assessment of the applicant’s costs.

1. Court of Appeal (Civil Division): The renewed application challenging the certificate was rejected. Application dismissed, with legal aid assessment of the applicant’s costs.
2. Queen’s Bench Division: Scott-Baker J held that section 76(3) was irrelevant to the Secretary of State’s consideration at that stage. The Court of Appeal agreed.