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

Permission to apply for judicial review should be refused where the fresh-claim decision discloses no arguable error of law. At the second stage of the WM test, the Secretary of State may assess whether a different decision would result from a fresh appeal. Delay may reduce the weight given to immigration control where it results from a dysfunctional system, but its relevance remains fact-sensitive. A prior statement that a claimant may be detained does not necessarily amount to a material finding requiring separate treatment, particularly where the earlier decision rejected the claim on other grounds. A decision-maker must assess the individual risk factors, including the extent of any LTTE involvement and whether the claimant would be of serious interest to the Sri Lankan authorities.

The claimant sought permission to apply for judicial review of the Secretary of State’s decision dated 31 July 2008, which maintained an earlier refusal of his asylum and article 8 claims and rejected matters advanced as a fresh claim. He relied on delay in the transmission of his appeal papers, an earlier statement that he might be detained on return to Sri Lanka, alleged failure to consider relevant country guidance, and alleged failures by his former representatives in relation to article 8 evidence.

The court also considered whether a stay of removal should continue. The central issues were whether the fresh-claim decision disclosed an arguable error of law and whether the asserted delay or risk evidence could arguably have changed the outcome.

1. Permission refused. The grounds disclosed no arguable error of law. The stay previously ordered by Silber J was not generally renewed, although a short stay was imposed until 1pm on 12 August 2008 solely to enable the claimant to receive advice about the decision.
2. In relation to article 8, the claimant relied on the approach to delay in HP (Ethiopia) [2006] EWCA Civ 1713 and EB (Kosovo) v Secretary of State [2008] UKHL 41. The court recognised that delay caused by a dysfunctional system may reduce the weight otherwise given to firm and fair immigration control. However, the claimant accepted that applying the passage relied upon would not have altered the merits of his case. No arguable point therefore arose.
3. The Secretary of State was entitled to conclude at stage 2 of WM that a fresh appeal would not produce a different decision. The earlier statement that the claimant might be detained did not require a different outcome. It was made in a decision which went on to reject the claim on other grounds, and the later decision carefully assessed the available evidence.
4. The decision-maker had directed herself to the relevant country guidance in LP v Secretary of State for the Home Department [2007] UKAIT 00076 and to NA v UK. Those authorities required an individual and careful assessment, including the extent of LTTE involvement, whether the Sri Lankan authorities already held relevant records, and whether the claimant would be of serious interest so as to warrant detention. The claimant’s limited and involuntary involvement had been considered.
5. The article 8 grounds, including the asserted relationship with family members and the absence of new supporting evidence, also disclosed no arguable basis for judicial review. Only the costs of the acknowledgement of service were recoverable, following Mitting.

The judgment records an earlier stay of removal granted by Silber J until 6 August 2008. This was an application for permission to apply for judicial review, heard at first instance in the Administrative Court. Permission was refused. A limited stay remained until 1pm on 12 August 2008 solely to permit advice to be given to the claimant.