Min Min & Anor, R (on the application of) v Secretary of State for the Home Department

The term application for asylum in Article 11 of the Reception Directive does not include further submissions or a proposed fresh claim made after the applicant’s original asylum claim has been finally determined. The Reception Directive and the Procedures Directive must be construed as parts of an interconnected scheme. The latter recognises that subsequent applications may be subject to a distinct procedure. The right to work under Article 11 is therefore unavailable while a fresh claim is being considered, unless the person remains an applicant whose original asylum application has not received a final decision.

A judicial review claim based on delay in considering a fresh claim will ordinarily succeed only in very exceptional circumstances and where the delay is manifestly unreasonable.

The claimants had previously made asylum claims which were rejected and had exhausted their appeals. They later submitted further material seeking to make fresh claims under paragraph 353 of the Immigration Rules. They challenged refusals of permission to work, contending that their further submissions were applications for asylum within Article 11 of the Council Directive 2003/9/EC.

The court also considered the second claimant’s renewed application for permission to seek judicial review concerning delay in determining her fresh claim. The central issues were whether a proposed fresh claim remained an application for asylum for the purposes of the Reception Directive, and whether the delay disclosed an arguable case in exceptional circumstances.

1. Substantive claim dismissed. The Council Directive 2003/9/EC and the Council Directive 2005/85/EC had to be read together and as parts of a coherent legislative framework. The first dealt with the reception of asylum seekers whose claims were being evaluated. The second recognised a separate regime for subsequent applications and further representations.
2. The definitions in Article 2 of the Reception Directive were decisive in context. An applicant or asylum seeker was a person whose application for asylum had not received a final decision. A person whose original claim and appeals had failed did not regain that status merely by submitting further material or seeking recognition of a fresh claim.
3. The broad wording of “application for international protection” in Article 2(b) did not alter that conclusion. Read in context, it remained subject to the limited process of reception established by the Directive. Article 16 did not require a different construction, and the Charter provisions relied upon did not create a human-rights imperative requiring a wider interpretation.
4. The court considered that treating every unverified fresh claim as a new application for asylum could produce an abusive result inconsistent with the Directive’s purpose. Accordingly, a proposed fresh claim was not an application for asylum within Article 11, and the claimants were not entitled to permission to work under paragraph 360 of the Immigration Rules.
5. The renewed application for permission to challenge delay was refused. Applying the approach in FH & Others v Secretary of State for the Home Department [2007] EWHC 1571 (Admin), such claims were unlikely to succeed absent manifestly unreasonable delay and very exceptional circumstances. The circumstances relied upon did not meet that threshold.
6. Permission to appeal the substantive decision was refused because the appeal had no real prospect of success. An extension of time was granted for any application to appeal. No costs order was sought in light of legal aid.

• High Court (Administrative Court): Permission had previously been granted to the second claimant by Cranston J. The first claimant obtained permission after an earlier refusal by Stanley Burnton J was followed by permission being conceded in the Court of Appeal. The present court dismissed the substantive claims and refused the second claimant’s renewed permission application.