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

A breach of the statutory prohibition on disclosing an asylum claim to a prospective return destination does not automatically invalidate removal arrangements or require leave to remain. Its purpose is to prevent a new risk arising on return. Where the breach may create such a risk and the claimant makes representations capable of constituting a fresh claim, the Secretary of State must consider those representations. The court should not determine in advance that the fresh claim must succeed or fail. The Secretary of State must first assess whether the unlawful disclosure has created a risk which would not otherwise exist.

The claimant, a failed Sri Lankan asylum seeker, challenged the disclosure of form IS33 to the Sri Lankan High Commission before arrangements were made for his removal. The form revealed that he had made and unsuccessfully appealed an asylum claim. The Secretary of State accepted that this breached section 13(3) of the Immigration and Asylum Act 1999.

Earlier judicial review proceedings had been refused, but disclosure of IS33 led to amended grounds in the renewed proceedings. The central issues were the legal consequences of the breach and whether the claimant’s representations amounted to a fresh claim requiring consideration.

1. Statutory breach. Disclosure of IS33, with affirmative answers showing that the claimant had made and failed in an asylum claim and appeal, breached section 13(3) of the Immigration and Asylum Act 1999.
2. Consequences of breach. The statutory provision contains no express consequence that subsequent acts become void, that removal directions cannot be issued, or that removal is automatically barred. Such a consequence, particularly one requiring indefinite leave to remain, would require the clearest statutory language. The court agreed with the reasoning in Shanmuganathan v Secretary of State for the Home Department [2012] EWHC 1293 Admin.
3. Purpose of the prohibition. The prohibition exists to prevent a failed asylum seeker facing a risk on return which would not otherwise arise from disclosure of the unsuccessful claim. The issue is therefore whether the disclosure created or increased a relevant risk.
4. Fresh claim. The amended grounds sufficiently stated that the disclosure itself amounted to a fresh claim. The Secretary of State could not avoid considering that claim by characterising the issue merely as an effect on risk. The court considered the country guidance in TK (Tamils - LP updated) Sri Lanka CG [2009] UKAIT 0049, including its assessment that knowledge of an overseas asylum claim was generally a relatively minor contributing risk factor.
5. Role of the court and Secretary of State. Although the existing material appeared capable of supporting rejection of the claim, it was for the Secretary of State in the first instance to decide whether the representations amounted to a fresh claim. The court declined to hold either that a fresh claim was inevitable or that rejection was legally inevitable.
6. The court declared the breach, required the Secretary of State to deal with the claim raised in the amended grounds, and ordered payment of the claimant’s costs, subject to assessment if not agreed.

The judgment itself describes earlier judicial review proceedings before Kenneth Parker J, followed by a renewed application heard by His Honour Judge Anthony Thornton QC sitting as a Deputy High Court judge. The present court required the Secretary of State to determine the claim raised in the amended grounds.