Kariharan & Anor, R (on the application of) v Secretary Of State For Home Department

An immigration policy may rationally distinguish between persons whose human-rights claims have already been considered and finally rejected on appeal and persons whose claims remain undetermined or raise matters not previously considered. Avoiding the reopening or duplication of appeals, with its costs, delay and impact on resources, provides rational justification for denying a second appeal. The correct comparison is between the relevant procedural groups, not between the merits of individual claims in each group. An irrationality challenge faces a high hurdle and should not proceed where it is not arguably surmounted.

Two Sri Lankan Tamil asylum seekers had exhausted their immigration appeals by 2 October 2000. Removal directions were subsequently made, and they contended that removal would breach their European Convention on Human Rights rights.

They sought declarations concerning an appeal under section 65 of the Immigration and Asylum Act 1999 and judicial review of part of the Secretary of State’s policy for generating human-rights appeals in certain pre-2 October cases. Mr Justice Stanley Burnton had decided three issues adversely to them. Permission to appeal had been granted on the first issue, concerning statutory construction. The renewed application before the Court of Appeal concerned only whether the policy was irrational.

Dyson LJ delivered the first judgment, and Parker LJ agreed.

1. Disposition. The renewed application for permission to appeal on the second issue was refused. Permission to appeal was allowed as to the first issue only. The Court therefore did not determine the underlying construction of the transitional provisions.
2. Rational justification. The policy distinguished between persons whose human-rights claims had already been considered and finally rejected through an independent appeal process and persons whose claims had not been finally determined, or whose claims raised issues or facts outside the earlier appeal determination. The only disadvantage to the first group was the inability to bring a second appeal.
3. Rationality assessment. Preventing the reopening or duplication of appeals served a legitimate public interest. Repeated appeals consumed time and money and delayed the allocation of resources to other cases. The distinction could not be characterised as absurd or irrational.
4. Proper comparison. The suggested comparison between persons with pending appeals and hopeless human-rights grounds and persons with earlier concluded appeals and potentially meritorious grounds was incorrect. If the appellate system operated properly, a meritorious claim that had already been considered should have succeeded.
5. Threshold. The high hurdle for an irrationality challenge was not arguably overcome. The judge’s reasoning could not be challenged.

• Court of Appeal (Civil Division) — [2002] EWCA Civ 615. Dyson LJ refused renewed permission on the irrationality issue. Parker LJ agreed. The formal order allowed permission to appeal on the first issue only.
• Queen’s Bench Division (Administrative Court) — Mr Justice Stanley Burnton decided three issues adversely to the claimants. The citation of that decision was not stated in the judgment.