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

Under section 55 of the Nationality Immigration Asylum Act 2002, an asylum seeker bears the burden of showing that the claim was not made as soon as reasonably practicable after arrival. The decision-maker must consider the effect of an agent or facilitator, where that is a relevant feature of the account. The authority establishes relevance, not the weight to be given to the factor. Weight remains a matter for the fact-finder on the particular evidence. A decision may remain lawful where credibility concerns are based on other relevant matters and the agent’s role was not sufficiently material to require express treatment. Any delay to obtain legal advice must be assessed according to the circumstances; such circumstances would need to be exceptional.

The claimant sought judicial review of the Secretary of State’s refusal of asylum support. The refusal relied on section 55 of the Nationality Immigration Asylum Act 2002, on the basis that the asylum claim had not been made as soon as reasonably practicable after arrival in the United Kingdom.

The claimant arrived on 4 May 2003 and claimed asylum four days later. He relied on the role of an agent, his confusion on arrival, advice from his brother and subsequent advice from solicitors. The central issue was whether the Secretary of State had acted irrationally or failed to take account of a relevant consideration by not expressly addressing the agent’s instructions.

1. The claim for judicial review was dismissed. The claimant had not discharged the burden of showing that he claimed asylum at the first reasonable opportunity.

2. The court explained the effect of R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364. The influence of an agent or facilitator is a relevant factor which must not be disregarded. The Court of Appeal did not prescribe the weight to be given to that factor or the conclusion to be drawn. Those matters depend on the evidence in each case.

3. The Secretary of State had considered matters capable of undermining the claimant’s account, including the use of another person’s passport, the circumstances at immigration control, the failure to claim asylum at the airport, the airport notices and the account of how he located his brother. The claimant’s case that the agent had exerted particular pressure was raised only after the refusal and was inconsistent with aspects of his screening interview. In those circumstances, it was not legally necessary to make specific reference to the agent’s role.

4. The court noted observations in S, D and T v Secretary of State for the Home Department [2003] EWHC 1941 concerning newly arrived asylum seekers, airport notices and reliance on agents. Those observations did not require the decision-maker to accept the claimant’s account or give the agent’s role determinative weight.

5. The court expressed serious reservations about treating an intention to obtain a solicitor’s advice as sufficient, in ordinary circumstances, to delay the first reasonable opportunity to claim asylum. The issue was not necessary to the decision, but any such circumstances would have to be exceptional.