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

For certification of a repeat immigration claim, “ground” includes its factual and legal aspects. The court should adopt a purposive approach directed to preventing repeat claims and achieving finality. Certification may therefore be lawful where the later claim and an earlier human-rights appeal raise, in substance, the same factual and legal issues, even though one is labelled an asylum claim and the other a human-rights claim. Differences in the legal consequences of successful claims do not prevent certification where the underlying risk and protection issues are essentially identical. A ground which should have been included in a required one-stop statement may also support certification.

The claimant, a Croatian national of Serbian ethnicity, had previously pursued an asylum appeal and a human-rights appeal concerning the risk of ill-treatment in Croatia. After further representations referring to an indictment involving the alleged murder of family members, the Secretary of State accepted the representations as a fresh claim but refused the claims and certified the fresh asylum claim under section 96(2)(a) and (b) of the Nationality, Immigration and Asylum Act 2002.

The claimant sought judicial review, arguing that an asylum ground was legally distinct from the Article 3 ground considered in the earlier human-rights appeal, and that the new material did not have to be included in his one-stop statement. The central issue was whether the fresh claim relied on a ground previously raised, or which should previously have been included.

1. Claim dismissed. The Secretary of State was entitled to certify the fresh asylum claim under section 96(2)(a) and, alternatively, section 96(2)(b) of the Nationality, Immigration and Asylum Act 2002.
2. “Ground” comprises the factual and legal grounds for contending that a claimant should not be removed. The court adopted the approach in R (on the application of Belamurali) v Secretary of State for the Home Department (2003) EWHC 1183 (Admin), treating the concept as analogous to a cause of action.
3. The word “ground” must be interpreted purposively. Section 96(2) is intended to prevent repeat claims on the same grounds and to secure finality. Certification is therefore available where there is no difference in substance between the later claim and the ground raised in the earlier appeal, despite differences in legal labels.
4. Here, the claimant’s case was essentially a fear of ill-treatment by Croatian extremists. The assessment of risk and the sufficiency of protection would be essentially the same whether the claim was advanced under the Refugee Convention or Article 3 of the Human Rights Convention. Differences in motivation, exclusion for criminal conduct, status and consequences were immaterial on these facts. The approach in R (on the application of Zenovics) v Secretary of State for the Home Department (2002) EWCA Civ 273 did not require a different result because that decision concerned a different factual situation and statutory provision.
5. The court also referred to R (on the application of Bagdanavicius) v Secretary of State for the Home Department (2003) EWCA Civ 1605 concerning the broad symmetry between asylum and Article 3 risk assessments. The distinctions identified there did not affect the present case.
6. It was unnecessary to decide the alternative ground, but the court held that, if the ground included factual and legal aspects, information about the indictment which was available before the one-stop statement should have been included in it. Certification under section 96(2)(b) was therefore also lawful.

Permission for judicial review was initially refused on the papers and on renewal. The Court of Appeal subsequently granted permission, limited to specified grounds. The High Court then dismissed the substantive claim. The judge later granted permission to appeal on an arguable point of law.