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

A breach of section 13(3) of the Immigration and Asylum Act 1999 does not automatically invalidate later removal directions, particularly where the disclosure was inadvertent and created no additional risk. The court may, however, exercise a discretionary power to prevent removal where the statutory prohibition has been deliberately and seriously flouted.

When assessing whether further submissions constitute a fresh claim under paragraph 353 of the Immigration Rules, the decision-maker must examine the previous tribunal determination, give the new material anxious scrutiny, and consider all the material cumulatively. The realistic prospect of success threshold is modest, but a fanciful prospect is insufficient. Judicial review remains governed by Wednesbury unreasonableness informed by anxious scrutiny.

The claimant, a Sri Lankan national and failed asylum seeker, sought judicial review of the defendant’s refusal to treat further representations as a fresh asylum claim under paragraph 353 of the Immigration Rules. The representations relied on an alleged Sri Lankan arrest warrant, unlawful disclosure of information showing that he had claimed asylum, and a subsequent interview by Sri Lankan officials.

Permission was initially refused by Wyn Williams J, but the renewed application was adjourned by Holman J for a rolled-up hearing. The central issues were whether the disclosure under section 13 of the Immigration and Asylum Act 1999 barred removal, and whether the further material created a realistic prospect that a further tribunal would allow the claimant’s asylum appeal.

1. Statutory disclosure. The defendant accepted that the internal Operation Tetyra pro-forma, recording that the claimant was a failed asylum seeker, had been disclosed contrary to section 13(3) of the Immigration and Asylum Act 1999. The disclosure was inadvertent.
2. Section 13 did not expressly provide that a breach automatically invalidated subsequent removal directions or an emergency travel document obtained using the disclosed information. There was no basis for treating an inadvertent breach, which created no additional risk, as automatically conferring a fortuitous benefit or preventing removal. The claimant’s primary submission was therefore rejected.
3. The court accepted that it possessed a discretionary power to strike down removal directions founded on an emergency travel document obtained through deliberate and cynical breach of section 13. Deliberate flouting of the statutory prohibition would be treated very seriously. There was, however, no evidential basis for finding deliberate disclosure in this case.
4. Fresh claim. Under paragraph 353 of the Immigration Rules, the new material had to be materially different and, taken with the previously considered material, create a realistic prospect of success. The test was modest, but the assessment had to begin with the previous tribunal determination, receive anxious scrutiny, and be made cumulatively. The judicial review question was whether the defendant’s decision was Wednesbury unreasonable, informed by anxious scrutiny.
5. The arrest warrant was genuine, but its contents, timing, absence of any evidence of execution or continuing interest, and inconsistency with the claimant’s history substantially weakened its significance. The disclosure and subsequent interview did not show an increased risk. The material, taken together, gave no more than a fanciful prospect of a different outcome before a further Immigration Judge.
6. The application therefore failed on both grounds.

Not an appeal. The judgment records earlier procedural steps in the judicial review proceedings:

• High Court, Administrative Court: Nicol J granted a stay on removal on 16 June 2011.
• High Court, Administrative Court: Wyn Williams J refused permission on 2 September 2011 but extended the stay pending renewal.
• High Court, Administrative Court: Holman J adjourned the renewed application for a rolled-up hearing on 30 November 2011.
• High Court, Administrative Court: The present court granted permission to amend and to apply for judicial review, then dismissed the claim on the merits.