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

Paragraph 346 of the Immigration Rules concerns a genuinely fresh asylum claim, such as a credible fresh basis or significant fresh evidence on the merits. It does not provide a general route for correcting a procedural defect in an earlier appeal. Where an applicant alleges that an adjudication was procedurally unfair, the ordinary remedy is to challenge that adjudication through the prescribed appeal and review process. The Secretary of State may treat the earlier adjudication as lawful unless and until it is set aside. Judicial review cannot indirectly achieve the quashing of an unchallenged appellate decision by attacking a later refusal to treat representations as a fresh claim.

The claimant challenged the Secretary of State’s refusal to treat further asylum and human rights representations as a fresh claim under paragraph 346 of the Immigration Rules. His first appeal had been dismissed in his absence, and a successful appeal led to a further adjudication, also conducted without the claimant or his representatives being present. The claimant later relied on medical and objective evidence, together with the procedural history, but the Secretary of State concluded that the representations were not sufficiently different or significant.

The claimant also alleged that the second adjudication breached natural justice. Permission to seek judicial review was granted on that issue only. An out-of-time application for permission to appeal the second adjudication had been refused, and no further challenge was made.

1. The application was dismissed. The Secretary of State was entitled to conclude that the further representations did not fall within paragraph 346 of the Immigration Rules.
2. Paragraph 346 was intended to cover a credible fresh basis for an asylum claim or significant fresh evidence on the merits of an existing claim. The claimant’s further account responding to the adverse credibility findings added little in substance. It was also available at the earlier adjudication, even applying a broad approach to the principles in Ladd v Marshall.
3. The Secretary of State was entitled to reject the contention that the claimant’s absence from the adjudication constituted fresh evidence for paragraph 346. The adjudicator had apparently conducted a careful analysis of the claimant’s account. A procedural defect of the alleged kind was properly to be addressed by an appeal, not by treating the subsequent representations as a fresh claim.
4. The claimant had a right to attend and present evidence in support of his appeal, and the judgment recognised the serious unfairness arising from his absence through no fault of his own. That did not, however, make the Secretary of State’s decision unlawful. It was reasonable for the Secretary of State to proceed on the basis that the earlier adjudication remained lawful unless set aside.
5. There was no residual discretion for the court to quash the Secretary of State’s lawful decision on natural justice grounds. The claimant’s proposed challenge would indirectly invite the court to act as if an appeal against the adjudication had been brought and had failed. The appeal process had not been exhausted, and no application was made to quash the Immigration Appeal Tribunal’s refusal to extend time.
6. Given the unusual facts, the Secretary of State was invited to consider any request to reconsider the matter and, if appropriate, permit the claimant to be heard. That observation did not qualify the legal conclusion or create a precedent.

The judgment records that:

• Immigration Appeal Tribunal: the claimant’s first appeal succeeded on 15 August 2002 and the matter was remitted for a fresh adjudication.
• Second adjudication: the appeal was dismissed on 22 October 2002.
• High Court: Richards J refused permission on paper. Gibbs J later granted limited permission to seek judicial review, confined to the alleged denial of a full and fair hearing.
• Immigration Appeal Tribunal: an out-of-time application for permission to appeal the second adjudication was refused. No statutory review or judicial review of that refusal was pursued.
• High Court (Administrative Court): the judicial review application was dismissed.