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

It is an abuse of process for the Secretary of State to raise a known Nationality Immigration and Asylum Act 2002, section 72 issue after an asylum appeal has been allowed, where the issue could and should have been raised before the Tribunal. Section 72(9) and (10), although not expressed in mandatory terms, indicate that the issue should ordinarily be considered in the appeal proceedings. Raising it later deprives the claimant of the statutory appeal route and creates substantive unfairness, as well as delay and expense. The later decision applying Article 33(2) of the Refugee Convention was therefore unlawful and was quashed.

The claimant, a Jamaican national, was convicted in the United Kingdom of supplying Class A drugs and sentenced to more than two years’ imprisonment. He later claimed asylum and protection under the Human Rights Convention. An Immigration Judge allowed his appeal on both asylum and human-rights grounds, and the Secretary of State did not challenge that decision.

The Secretary of State subsequently relied on Article 33(2) of the Refugee Convention and the presumptions in section 72 of the Nationality Immigration and Asylum Act 2002 to refuse asylum and leave to enter and remain. The central issue was whether that course was an abuse of process because the section 72 issue had not been raised before the Immigration Judge.

1. The claim succeeded. The Secretary of State’s decision of 6 June 2006 refusing leave to enter and remain was unlawful and was quashed.

2. An Immigration Judge who allows an asylum appeal is deciding whether the claimant satisfies the requirements of paragraph 334 of the Immigration Rules, including whether refusal would require removal in breach of the Refugee Convention. The decision is not merely a declaration of refugee status. Once the appeal was allowed and was not challenged, the claimant became entitled to leave to enter and remain.

3. The principle of finality in litigation requires a broad, merits-based assessment of abuse of process. Applying that approach, it was abusive for the Secretary of State to withhold a section 72 issue based on past facts already known to her, and to raise it only after the asylum appeal had been allowed.

4. Four matters supported that conclusion: section 72(9) and (10) contemplate the issue being raised as part of the appeal; failure to raise it deprived the claimant of the statutory appeal route and left only judicial review; withholding such issues could encourage tactical conduct; and the same one-stop principle imposed on asylum applicants should apply to the Secretary of State.

5. It was unnecessary to determine the wider relationship between Article 33(2) and section 72, or whether the claimant had rebutted the statutory presumptions. The remaining challenges concerning five years’ leave and discretionary leave failed consequentially. Obiter, section 72(9) and (10) would permit the Secretary of State to raise the issue at the hearing even without having issued a certificate beforehand.

The claimant was awarded detailed assessment of his publicly funded costs.

The Immigration Judge allowed the claimant’s asylum and human-rights appeal. The Secretary of State did not seek reconsideration or set aside that decision. The Administrative Court subsequently quashed the Secretary of State’s later decision applying Article 33(2) and section 72.