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

Under section 73 of the Immigration and Asylum Act 1999, “claim” and “grounds” comprise both the factual and legal basis for contending that a person should not be removed. “No other legitimate purpose” concerns the claimant’s purpose in making the claim. It does not require the claim to be arguable, nor does it focus on the availability of new material. The phrase operates as a long-stop against injustice within a statutory scheme designed to secure finality through a single appeal. The Secretary of State retains a discretion whether to certify and must exercise it according to administrative law principles, taking account of the statutory scheme and the claimant’s human rights. The strength of the new claim and the reasons for its earlier omission will commonly be relevant.

The claimant had previously pursued asylum and human rights appeals concerning his removal to Sri Lanka. After obtaining a further psychiatric report, he raised additional claims under Articles 3 and 8 of the European Convention on Human Rights. The Secretary of State certified those claims under sections 73(2) and 73(5) of the Immigration and Asylum Act 1999, treating them as matters that could reasonably have been raised earlier or had already been considered.

The claimant sought judicial review of the certification decision. The issues were the meaning of “claim”, “grounds” and “no other legitimate purpose”, and the factors governing the Secretary of State’s discretion.

1. Application dismissed. The Secretary of State’s certification decision was unimpeachable.
2. “Claim” in section 73(2)(a) and “grounds” in section 73(5) include the factual and legal basis for asserting that removal should not take place. They are analogous to a cause of action. “Claim” cannot mean the human-rights claim relating to the later decision itself, since that claim could not have been made in an earlier appeal.
3. The court declined to follow the analyses in Vemenac v The Secretary of State [2002] EWCH 1636 Admin and Ngamguem [2002] EWHC 156. “Legitimate purpose” focuses on the purpose for which the claimant makes the claim, rather than its soundness or the prior availability of the material relied upon. It is a long-stop provision intended to accommodate unforeseen cases and avoid injustice.
4. Section 73 is directed to finality through the inclusion of all claims in one appeal. If the Secretary of State is satisfied that a claim could reasonably have been made in the original appeal, was not made, and was intended to delay removal, he may certify it unless unusual circumstances show another legitimate purpose.
5. The certification power is discretionary. The Secretary of State must take account of the statutory scheme and, under section 6 of the Human Rights Act 1988, the claimant’s human rights. The strength of the new claim and the reasons for its earlier omission will commonly be relevant, although the list of factors is neither exhaustive nor definitive.
6. The Article 3 claim had already been raised. The Article 8 claim based on the claimant’s mental health could reasonably have been advanced in the earlier appeal. The Secretary of State had considered the psychiatric evidence and reached a conclusion open to him. Detailed assessment of the claimant’s publicly funded costs was ordered. Permission to appeal was granted because an authoritative ruling on section 73 was desirable.

First-instance judicial review in the Administrative Court. Permission to appeal to the Court of Appeal was granted on the ground that an authoritative ruling on the interpretation of section 73 was required.