Secretary of State for the Home Department, R (on the application of) v Chief Asylum Support Adjudicator

A statutory appeal against refusal of asylum support is available where the Secretary of State decides that the applicant does not qualify for support under section 95, including where the dispute concerns whether the applicant is an asylum-seeker or dependant, or whether the statutory facts are established. The appeal is not confined to applicants whose status as asylum-seekers is accepted by the Secretary of State. The adjudicator must determine the disputed factual and legal issues and dismiss the appeal if the applicant falls outside the statutory class. A judicial review claim challenging that jurisdiction therefore fails.

The Secretary of State sought judicial review of a decision by the Chief Asylum Support Adjudicator concerning an appeal by Flutura Malaj. The Secretary of State had refused her application for support under section 95 of the Immigration and Asylum Act 1999, stating that she was no longer an asylum-seeker. The Chief Asylum Support Adjudicator accepted jurisdiction under section 103(1), but dismissed the appeal on its merits.

The central issue was whether an adjudicator could hear an appeal where refusal of support was based on the asserted absence of asylum-seeker status.

1. The claim for judicial review was dismissed. The Chief Asylum Support Adjudicator had jurisdiction to hear the appeal under section 103(1) of the Immigration and Asylum Act 1999.
2. Section 95 identifies the class of persons whom the Secretary of State may support. On receiving an application, the Secretary of State must determine whether the statutory criteria are met. That determination may involve disputes of fact or law, including whether the applicant is an asylum-seeker or dependant within section 94(1).
3. Section 103(1) gives a right of appeal against a decision that an applicant does not qualify for support. Its wording does not restrict the right of appeal to persons whom the Secretary of State accepts to be asylum-seekers. The adjudicator may determine the underlying factual and legal issues and must dismiss the appeal if the applicant does not qualify.
4. The proposed alternative remedy of judicial review was artificial and inconsistent with the swift statutory appeal mechanism. The Secretary of State’s treatment of the application as properly made and determination of it on its merits also sat uneasily with the later assertion that no appeal jurisdiction existed.
5. The observations of Laws LJ in Dogan v Secretary of State for the Home Department and Chief Asylum Support Adjudicator [2003] EWCA Civ 1673 concerning non-qualification appeals were strictly obiter, because that issue had not arisen for decision, but they had considerable persuasive force and were respectfully endorsed.
6. No assistance was derived from The Queen (on the Application of Mahmud) v Secretary of State for the Home Department and Asylum Support Adjudicator [2005] EWHC 563, which was a short ex tempore decision on a renewed permission application and had been decided without reference to Dogan.

First-instance judicial review proceedings. The judgment states that permission had been granted by Lloyd-Jones J on 3 March 2006. The claim was dismissed by the Administrative Court.