Apata, R (On the Application of) v Secretary of State for the Home Department

Judicial review is not a substitute for a statutory appeal in asylum and human-rights cases. After a claim has failed and appeal rights are exhausted, fresh material must be put to the Secretary of State under the Immigration Rules, paragraph 353. The Secretary of State must decide whether it is significantly different and creates a realistic prospect of success. A court reviewing that decision examines rationality, not the merits, and does not act as a surrogate tribunal. In an urgent removal challenge, any suggested fresh claim should be identified. If arguable, a stay may be appropriate pending the Secretary of State’s decision.

The appellant, a Nigerian national, had made earlier asylum and human-rights claims which were rejected. The First-tier Tribunal also rejected her claim to be a lesbian and dismissed her appeal against deportation. She later brought judicial review proceedings challenging removal directions set for 24 January 2013. The claim was subsequently expanded to rely on further evidence and to invite the High Court to determine her asylum and human-rights merits.

The deputy High Court judge dismissed the claim. The appeal concerned whether the High Court should have determined the merits of the new evidence and whether that evidence should instead have been considered under paragraph 353 of the Immigration Rules, although no paragraph 353 decision had been made or challenged.

Appeal dismissed. The removal directions had been lawfully set on 8 January 2013, and that conclusion was not challenged on appeal. The deportation order and the First-tier Tribunal’s decision were likewise not the subject of these proceedings.

1. The statutory scheme and the Immigration Rules allocate primary decision-making in asylum and human-rights cases to the Secretary of State, with rights of appeal to the immigration tribunals. Where an appeal mechanism exists, judicial review cannot be used as an alternative. The court followed the approach reflected in R (G) v Immigration Appeal Tribunal [2005] 1 WLR 1445, R (F) Mongolia v AIT [2007] 1 WLR 2523, and Ibrahim and Omer v Secretary of State for the Home Department [2010] EWHC 764 (Admin).
2. Paragraph 353 applies where an earlier asylum or human-rights claim has failed and appeal rights are exhausted. The Secretary of State must consider the fresh material and decide whether to grant protection or whether it amounts to a fresh claim. The material is significantly different only if it has not already been considered and, taken with the earlier material, creates a realistic prospect of success notwithstanding its rejection.
3. Where the Secretary of State decides that there is no fresh claim, judicial review is confined to whether that decision was rational. The court does not determine the merits of the underlying claim. If the challenge succeeds, the Secretary of State must remake the decision. If a fresh claim is accepted but refused on its substance, the claimant may appeal to the First-tier Tribunal. This approach followed WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495; [2007] Imm App R 337.
4. The question whether the appellant was a refugee or entitled to humanitarian protection had never properly been before the High Court. The deputy judge’s findings on those merits were therefore strictly obiter. The High Court was not a surrogate First-tier Tribunal, particularly where no decision had been made on the fresh material under paragraph 353.
5. In an urgent removal application, a suggested fresh claim should be identified. If there is an arguable case that the material satisfies paragraph 353, a stay may be appropriate pending the Secretary of State’s decision. The Court granted a 14-day stay to enable consideration of the material, but declined to express a view on whether the Home Office should disregard the deputy judge’s findings.

• Court of Appeal (Civil Division): Appeal dismissed. A 14-day stay on removal was granted to allow the fresh material to be considered under paragraph 353 of the Immigration Rules.
• High Court of Justice, Queen’s Bench Division, Administrative Court: The deputy judge dismissed the judicial review claim: [2015] EWHC 888 (Admin).