Balamurali & Anor v Secretary of State for the Home Department

Section 73 of the Immigration and Asylum Act 1999 prevents abuse of the appellate system after an earlier appeal has been finally determined. Where a fresh application gives rise to a new appeal, certification requires the Secretary of State to form an opinion that one purpose of the application was to delay removal and that the applicant had no other legitimate purpose. A legitimate purpose is not confined to a meritorious or properly arguable claim. The Secretary of State may consider whether the material could have been advanced earlier, the circumstances in which it is presented, and whether it discloses a worthwhile reason for making the application at that stage. The same approach applies to a later human-rights claim made in a notice of appeal under section 73(2), subject to the statutory requirement that it could reasonably have been raised earlier.

These conjoined appeals concerned certificates issued under section 73 of the Immigration and Asylum Act 1999. In Balamurali, the Secretary of State certified that an Article 8 claim could reasonably have been raised earlier, was made partly to delay removal, and had no other legitimate purpose; he also certified under section 73(5) that Article 3 grounds had already been considered. Mitting J dismissed the judicial-review claim.

In Sandhu, the Secretary of State issued a certificate under section 73(8) after a further Article 8 application relying on the claimant’s marriage, wife’s circumstances and child. George Bartlett QC quashed the certificate, applying a test focused on whether the application was simply a delaying tactic. The central issue was the proper construction of “no other legitimate purpose” and its relationship with delay, merits and the earlier availability of the claim.

1. Disposition. The appeal in Balamurali was dismissed. The Secretary of State’s appeal in Sandhu was allowed and the order quashing the section 73(8) certificate was set aside. Sandhu remained liable for the costs of the appeal and the hearing below. The application for permission to appeal to the House of Lords in Balamurali was refused.
2. Structure and purpose. Part IV of the Immigration and Asylum Act 1999 had three connected objectives: to grant specified rights of appeal; to ensure that an appeal covered every available ground; and to prevent abuse of the appellate system. Section 73 operated only after an original appeal had been finally determined.
3. Section 73(8). When further representations amounted to a fresh claim but were rejected, the Secretary of State could consider certification under section 73(8). He first had to form an opinion whether one purpose, not necessarily the only purpose, of the application was to delay removal. If so, he had to consider whether the applicant had any other legitimate purpose. That inquiry asks whether the applicant had a worthwhile reason, apart from buying time, for presenting the application in the form and at the stage chosen. It is not identical to a merits test, although the strength of the claim and the earlier availability of the material may be relevant.
4. Section 73(2). Where a notice of appeal contained a human-rights claim which could reasonably have been made in response to the earlier one-stop notice or in the original appeal, the Secretary of State could apply the same delay and legitimate-purpose inquiry. The earlier-availability requirement in section 73(2)(a) already addressed whether the claim could have been made at those specified stages.
5. Application. The approaches in Ngamguem [2002] EWHC Admin 1550 and Vemenac [2002] EWHC Admin 1636 were not followed to the extent that they treated legitimate purpose as turning on the weight or arguability of the claim. On the facts of Balamurali, certification under section 73(5) in respect of Article 3 and under section 73(2) in respect of Article 8 was open to the Secretary of State. In Sandhu, the deputy judge had applied an incorrect approach by treating the central question as whether the application was simply a delaying tactic. The Secretary of State was entitled to certify, although the reasons for certification had to be properly explained.

• Court of Appeal (Civil Division): Dismissed Balamurali’s appeal from Mitting J’s dismissal of the judicial-review claim. Allowed the Secretary of State’s appeal from George Bartlett QC’s order quashing the certificate issued against Sandhu under section 73(8) of the Immigration and Asylum Act 1999.