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

For the purposes of Nationality Immigration and Asylum Act 2002, section 96(2)(a) certification depends on whether a later claim relies on the same factual and legal ground as an earlier appeal. Identical facts or the same practical outcome do not make the grounds identical where the legal regimes differ. Refugee Convention and European Convention claims may therefore be distinct.

Certification may nevertheless be valid under section 96(2)(b) where, on the case as presented below, a fresh asylum ground should have been included in the one-stop statement under section 75(2). The issue is whether the ground should have been included, not whether the certified claim is likely to succeed.

The appellant challenged the Secretary of State’s June 2003 certification of a fresh asylum claim under Nationality Immigration and Asylum Act 2002, section 96(2). Harrison J in the Administrative Court upheld the certification, treating the Refugee Convention claim and the earlier human-rights claim as substantively the same and accepting that the new information should have been included in the one-stop process.

The appeal concerned whether the fresh asylum claim relied on a ground previously raised under section 96(2)(a), and whether it was a ground which should have been included in the earlier one-stop statement under section 96(2)(b), despite the appellant’s claimed lack of subjective knowledge of the relevant indictment at the time of the appeal.

Disposition. Buxton LJ allowed the appeal on the section 96(2)(a) issue but dismissed the appeal overall because certification was available under section 96(2)(b). Chadwick LJ agreed. The respondent’s costs were subject to Legal Services Commission assessment.

1. Under section 96(2)(a) of the Nationality Immigration and Asylum Act 2002, a ground comprises both the factual and legal grounds relied on to resist removal. The court adopted the analysis in R (on the application of) Balamurali v Secretary of State for the Home Department [2003] EWCH 1183 (Admin), treating the common-law analogy as a cause of action.
2. The fact that the same facts are relied on, and that both claims seek to prevent removal, does not make the grounds the same. Refugee Convention and European Convention claims differ in their protected interests, the need to establish persecution on a Convention ground, the role of home-state protection, and the applicable threshold of ill-treatment. Failure to meet the high Article 3 threshold does not determine the outcome of a Refugee Convention claim. In exceptional cases, Articles 8 and 9 may protect interests not protected per se by the Refugee Convention, and events in the United Kingdom may create Convention rights relevant to expulsion.
3. The High Court’s purposive construction was therefore impermissible. A purposive interpretation remains an exercise in construction and cannot give statutory language a meaning it cannot bear. Section 96(2)(a) asks whether the later case has actually been tried; it is not a merits screen comparable to a Civil Procedure Rules Part 24 application. The court should also approach a construction restricting an otherwise available appeal or access to court with reluctance.
4. Section 75(2) of the Immigration and Asylum Act 1999 required additional grounds which the person had or might have to be included in the one-stop statement. The fresh asylum claim based on the new information was an additional and distinct ground, notwithstanding the earlier asylum application, and should have been included. On the basis on which the case was put below, and without deciding the full limits of section 96(2)(b), the judge had not erred in upholding certification under that paragraph.

1. Court of Appeal (Civil Division) dismissed the appeal, reversing the finding under section 96(2)(a) but upholding certification under section 96(2)(b).
2. High Court, Administrative Court Harrison J dismissed the judicial review challenge on 30 July 2004 and upheld the Secretary of State’s certification of the fresh asylum claim.