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

The making of representations said to constitute a fresh asylum claim does not automatically revive entitlement to asylum support. Following an earlier rejected claim and exhausted appeals, the Secretary of State must first decide whether the representations amount to a fresh claim and record them as such. The right to support under Part 6 of the Immigration and Asylum Act 1999 arises only thereafter. The Secretary of State must decide the issue as soon as reasonably practicable and must not use delay to leave a person destitute. Section 4 provides a safety net while the decision is pending, including where necessary to avoid a breach of Convention rights.

The claimant, an Ethiopian national, had claimed asylum in the United Kingdom. His claim and subsequent appeals and statutory review had failed. He then submitted further medical and political evidence, which he said amounted to a fresh asylum claim. Before the judicial review was heard, the Secretary of State accepted that it should be treated as a fresh claim, making the support issue academic.

The claimant argued that the fresh claim automatically made him an asylum seeker under section 94 of the Immigration and Asylum Act 1999, thereby entitling him to continuing support under section 95. The central issue was whether further representations automatically triggered that entitlement before the Secretary of State had decided that they constituted a fresh claim.

1. The issue was determined notwithstanding its academic character. The court retained the claim because the question was likely to arise in other public law cases.
2. Under section 94 of the Immigration and Asylum Act 1999, a person becomes an asylum seeker only where a claim for asylum has been recorded and remains undetermined. After an earlier claim has been rejected and the appeal process exhausted, further representations may be either a fresh claim or merely a request to reconsider the original claim.
3. The Secretary of State is entitled, and required, to decide whether the representations amount to a fresh claim before the statutory right to support under section 95 arises. The making of representations alone does not automatically trigger continuing support. This approach is consistent with R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768 and paragraph 346 of the Immigration Rules.
4. The decision should be made as soon as reasonably practicable. Administrative delay must not be allowed to place a person with a potentially genuine fresh claim under illegitimate pressure or in breach of Convention rights. Section 4 provides a means of accommodating a person whose original claim has failed, and may operate as a safety net while the fresh-claim decision is pending.
5. The claimant’s case appeared overwhelmingly likely to qualify as a fresh claim, particularly in light of the earlier judicial observations. The Home Office should have dealt with it sooner and should ensure that its support branches communicate effectively. The issue was decided for the Secretary of State on construction, but costs were ordered in the claimant’s favour up to and including 1 July because earlier action would have avoided the proceedings. The hearing costs were excluded and were subject to detailed assessment.