Balamurali & Anor v Secretary of State for the Home Department

These two appeals relate to challenges seeking judicial review of decisions made under section 73 of the Immigration and Asylum Act 1999 which entitled the Secretary of State in certain circumstances to issue a certificate to limit a claimant’s right to appeal. Section 73, along with the rest of Part IV of the 1999 Act, has been repealed by section 114(1) of the Nationality, Immigration and Asylum Act 2002. Certification provisions are now to be found in section 96 of the 2002 Act.

The claimant in this case is a Sri Lankan who arrived in the United Kingdom on 6^th November 1998. He claimed asylum, and that was refused on 28^th October 1999. He appealed to an adjudicator, and that appeal on asylum grounds was dismissed on 24^th May 2000. He sought leave to remain on human rights grounds (alleging that his removal would be in breach of Articles 2, 3, 6, 9 and 14 of the European Convention on Human Rights) but on 20^th February 2001 the Secretary of State refused to grant leave to remain and on 23^rd May 2001 the Secretary of State implemented the “one-stop” procedure by issuing a notice pursuant to section 74(4) of the 1999 Act requiring the claimant to state any additional grounds he had or may have for wishing to remain in the United Kingdom. The claimant responded on 29^th May 2001 and appealed to an adjudicator against the refusal of the Secretary of State to grant him leave to remain on human rights grounds. That appeal was dismissed on 12^th September 2001. Amongst the documents considered by the adjudicator was a report from a psychiatrist, Dr Taghipour, which the adjudicator considered with some care.

On 14^th July 2002 the claimant applied for exceptional leave to remain, and to support that application he submitted a report from another psychiatrist, Dr Coleman, dated 6^th June 2002. It dealt with the claimant’s allegations of treatment in the past, his current condition, and his need of treatment, and it asserted that there would be a high risk of suicide if he were required to return to Sri Lanka. In their letter of 14^th July 2002 the claimant’s solicitors wrote –

“For the above reasons it is submitted the removal of Mr Balamurali to Sri Lanka will lead to a breach of Articles 3 and 8 ECHR. It is contended that the effect of any removal action upon Mr Balamurali because of his psychological state is such as to constitute inhuman or degrading treatment. In the alternative, it is submitted that this factor engages the lower threshold of Article 8 in respect of the ‘personal integrity’ aspect of Mr Balamurali’s private life.”

There was no immediate response to that letter, and on 15^th August 2002 the Secretary of State directed that the claimant be removed to Sri Lanka on 10^th September 2002. The solicitors protested at the lack of response and the directions were cancelled. The claimant was again issued with a one-stop notice under sections 74 to 76 of the 1999 Act, and in a fax dated 5^th September 2002 the claimant was told that any representations submitted would be considered along with those previously made. On 19^th September 2002 the claimant’s solicitors submitted further written representations drawing attention to the claimant’s medical condition, together with a brief report from Dr Ghanem, a psychiatrist at the Central Middlesex Hospital, and a further copy of the material submitted on 14^th July, 2002, which included material as to the availability of psychiatric treatment in Sri Lanka.

On 27^th September 2002 the Secretary of State gave notice of further removal directions. On this occasion he directed removal from the United Kingdom on 16^th October 2002. The claimant on 7^th October 2002 gave notice of appeal, complaining of breach of his rights under the European Convention, and under the Geneva Convention, and of inadequate consideration being given to representations already submitted. On 14^th October 2002 the Secretary of State gave a detailed response to the letters written by the claimant’s solicitors on 14^th July, 19^th September and 7^th October 2002. In short the Secretary of State was of the opinion that the additional medical evidence afforded no justification for allowing the claimant to stay in the United Kingdom, and that such medical facilities as he needed would be available in Sri Lanka. The Secretary of State pointed out that on 29^th May 2001, in response to the one-stop notice, there was no reference to Article 8 of the European Convention, and his letter continued-

“The Secretary of State accordingly certifies under section 73(2) of the Act that in his opinion your claim that the removal of your client would be a breach of Article 8

•

Could reasonably have been included in a statement required from you under section 74 of the Act but was not so made, or

•

Could reasonably have been made in your original appeal but was not so made.

In his opinion, one purpose of your claim would be to delay the removal of Mr Balamurali from the United Kingdom and you had no other legitimate purpose for making it.

By virtue of section 73(3) of the Act your appeal, so far as it relates to this claim, is to be treated as finally determined.

Your other grounds of appeal relate to Article 3 but this ground was considered in your client’s earlier appeal.

The Secretary of State accordingly certifies under section 73(5) of the Act that these grounds contained in your notice of appeal were considered at your earlier appeal.

By virtue of section 73(6) of the Act, your appeal, so far as it relates to these grounds, is to be treated as finally determined. Since the only other ground of appeal has been certified under section 73(2) of the Act, your appeal is to be treated as finally determined in its entirety.”

On 31^st October 2002 the claimant commenced these proceedings for judicial review in which he challenges the decision taken on 14^th October 2002 to certify his human rights application. On 9^th May 2003 Mitting J dismissed the claim, saying that the decision to certify seemed to him to be unimpeachable. In order to understand his reasons for that conclusion it is necessary to look at the structure of Part IV of the 1999 Act, and in particular at section 73, which deals with certification.

Part IV of the 1999 Act deals with appeals, and within that Part section 65 deals with appeals by those who allege that an authority has, in the context of immigration, acted in breach of their human rights. They have a right of appeal to an adjudicator. Similarly by section 69 the right of appeal to an adjudicator is given to those whose applications for asylum are refused, but there are limitations on the rights of appeal. For example, where there has been or is to be removal to certain countries and the appellant has a right of appeal under section 65 the Secretary of State can certify under section 72(2)(a) that any allegation that a person acted in breach of his human rights is “manifestly unfounded”.

That brings me to section 73 which seeks to limit further appeals. So far as material, and omitting references to the Special Immigration Appeals Commission, that section reads –

“(1)

This section applies where a person (‘the appellant’) has appealed under … this Act and that appeal (‘the original appeal’) has been finally determined.

(2)

If the appellant serves a notice of appeal making a claim that a decision of the decision-maker was in breach of the appellant’s human rights, the Secretary of State may certify that in his opinion –

(a)

the appellant’s claim –

(i)

could reasonably have been included in a statement required from him under section 74 but was not so included, or

(ii)

could reasonably have been made in the original appeal but was not so made;

(b)

one purpose of such a claim would be to delay the removal from the United Kingdom of the appellant or of any member of his family; and

(c)

the appellant had no other legitimate purpose for making the claim.

(3)

On the issuing of a certificate by the Secretary of State under subsection (2), the appeal, so far as relating to that claim, is to be treated as finally determined.

(4)

Subsection (5) applies if a notice under section 74 was served on the appellant before the determination of his original appeal and the appellant has served a further notice of appeal.

(5)

The Secretary of State may certify that grounds contained in the notice of appeal were considered in the original appeal.

(6)

On the issuing of a certificate by the Secretary of State under subsection (5), the appeal, so far as relating to those grounds, is to be treated as finally determined.

(7)

Subsection (8) applies if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant.

(8)

The immigration officer or, as the case may be, the Secretary of State may certify that in his opinion -

(a)

one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and

(b)

the appellant had no other legitimate purpose for making the application.

(9)

No appeal may be brought under ... this Act against a decision on an application in respect of which a certificate has been issued under subsection (8).

(10)

Nothing in section 58(6) affects the operation of subsections (3) and (6).”

Section 58(6) provides that an appeal is not be treated as finally determined while a further appeal may be brought.

Sections 74 to 77 deal with the one-stop procedure to which I have already referred. It begins with a notice served pursuant to section 74(4) which provides -

“The decision-maker must serve on the applicant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional grounds he has or may have for wishing to enter or remain in the United Kingdom.”

The statement in response to the notice has to be in writing, served within a prescribed period and section 74(7) provides -

“A statement required under this section must -

(a)

if the person making it wishes to claim asylum, include a claim for asylum;

(b)

if he claims that an act breaches his human rights, include notice of that claim.”

Section 76 deals with failure to comply with the notice under section 74, and subsections (2) and (3) provide -

“(2)

If the applicant’s statement does not mention a particular ground -

(a)

for which he wishes to enter or remain in the United Kingdom, and

(b)

of which he is aware at the material time,

he may not rely on that ground in any appeal under … this Part.

(3)

Subsection (2) does not apply if -

(a)

the ground is a claim for asylum or a claim that an act breached the applicant’s human rights; or

(b)

the Secretary of State considers that the applicant had a reasonable excuse for the omission.”

By the time that Mitting J came to deliver judgment in this case of Balamurali the provisions of section 73 had been considered by the High Court on other occasions.

Ngamguem [2002] EWHC Admin 1550 was a native of Cameroon who had sought asylum. He was refused. His appeal to an adjudicator was dismissed, and directions for his removal were given. Some months later his solicitors submitted what they said was new evidence. They asked for the removal directions to be cancelled. The Secretary of State refused, and issued a certificate pursuant to section 73(8). That was challenged in proceedings for judicial review, and in a judgment delivered on 8^th July 2002 Ouseley J said at paragraph 46 -

“In order for there to be a legitimate purpose there has to be some new material of substance placed before the Secretary of State which goes beyond what has been presented to the Special Adjudicator and it is for the Secretary of State to consider whether it does or does not have any weight. If he considers that it does not, the conclusion follows that he is entitled to certify the claim as one for the purposes of delay with no other legitimate purpose.”

The judgment in Vemenac [2002] EWHC Admin 1636 was delivered only a few days later, on 17^th July 2002. He was a Serb from Croatia whose application for asylum was refused. On appeal to an adjudicator he also raised human rights issues but his appeal was dismissed. Months later he made a fresh application for leave to remain on the basis of his relationship with a woman (invoking Article 8 of the European Convention) and by reference to material which he said showed that he would face difficulties obtaining housing if he were returned. The fresh application was rejected, and a certificate was issued pursuant to section 73(8), which was challenged in proceedings for judicial review. Burton J at paragraphs 18 to 20 considered the situation which had to exist to enable the Secretary of State to issue a certificate, saying -

“It is not enough for a conclusion to be reached that the purpose was delay, because of course a good claim can delay removal from the United Kingdom …. And so it could be said of almost any claim, good or bad, that one of the purposes for making the application is to delay removal.

What is necessary to justify the Secretary of State’s certification is that in his opinion the appellant had no other legitimate purpose for making the application. … The question is whether the Secretary of State was entitled to be satisfied that in his opinion the appellant had no such legitimate purpose for making the application.

…What that means is that the Secretary of State must be shown reasonably to have been satisfied that in his opinion the appellant had no legitimate purpose because the case put forward is so hopeless that it was not properly arguable.”

Mitting J was referred to the two earlier decisions, but he disagreed with them as to the meaning of “no other legitimate purpose”. That was relevant because the third requirement for the issue of a certificate under 73(2) is in precisely the same terms as the second requirement for the issue of a certificate under section 73(8). At paragraphs 15 to 19 Mitting J said –

“‘Legitimate purpose’ seems to me to focus on the purpose for which the claimant makes his claim, not on its soundness nor on the prior availability or lack of availability of material relied on for the first time in his new appeal. Other phrases could easily have suggested either proposition: in section 72 of the 1999 Act the phrase ‘manifestly unfounded’ deals with hopeless claims. In section 73(2)(a)(ii) itself, the availability or lack of availability of material is explicitly addressed. I have struggled to discern what the draftsman might have had in his mind. ... (Counsel for the Secretary of State) submitted that the words were there to accommodate situations not foreseen by the draftsman as a long-stop against potential injustice. On the submissions that I have heard that seems to me to be the only acceptable construction of that phrase.

…If the Secretary of State is satisfied that the appellant’s claim, … could reasonably have been made in the original appeal but was not, and that one purpose of such a claim would be to delay removal from the U.K., then, save in unusual circumstances in which the claimant had another legitimate purpose, the Secretary of State is entitled to go on to consider whether or not to issue the certificate.

… He has a discretion in so doing and … his discretion is governed by administrative law principles. … it seems to me that the Secretary of State must take into account two factors: first, the scheme of this part of the Act, which is intended to produce finality resulting from a single appeal; and secondly, by virtue of section 6 of the Human Rights Act 1988, the human rights of the claimant. Factors which it will commonly be appropriate to take into account are likely to be the strength or weakness of any new claim and the reasons why such a claim was not advanced in the original appeal.”

Terrat Singh Sandhu is an Indian who came to the United Kingdom in February 1999 and claimed asylum. In March 2000 he married a British citizen and on that basis also he sought leave to remain. His applications were refused, a one-stop notice was issued, and he appealed, citing Article 8 of the European Convention. On 7^th August 2001 he did not attend when his appeal was listed for hearing, and in accordance with the relevant Rules the appeal was therefore treated as abandoned. In about April 2002 the claimant’s wife gave birth to a child, and in June 2002 his solicitors sought what they described as a variation of leave, drawing the attention of the Secretary of State to the fact that the wife was educationally sub-normal and suffered from bronchial asthma so she could not live alone. They also drew attention to the existence of the child. The Secretary of State maintained his position, and eventually on 27^th February 2003 removal directions were given. On 28^th February 2003 the claimant began proceedings for judicial review of the decision to remove claiming that his case had not been properly considered in relation to Article 8. In a letter to the claimant’s solicitors dated 25^th March 2003 the Secretary of State reviewed the history of the claim, asserting that any interference with family life was proportionate and within the scope of Article 8(2). A certificate was issued pursuant to sections 73(8), and the judicial review proceedings were amended to include a challenge to the issue of that certificate.

Mr Bartlett QC, sitting as a deputy judge of the High Court, on 16^th September 2003 upheld the approach of the Secretary of State in relation to Article 8, which he found not to be engaged. The claimant’s wife could if she wished go with him to India, and if she chose not to do so the interference with their family life was proportionate. As to the issue of the certificate he reviewed the three authorities to which I have already referred, and the case of Alia decided by Keith J on 31^st July 2003. In that case Keith J said he thought it possible that section 73(8) was intended to apply to situations where the appellant is trying to buy time in the United Kingdom before he has to bow to the inevitable and submit to his removal from the United Kingdom. Mr Bartlett adopted that approach, saying that he regarded the two stage approach adopted expressly by Burton J and implicitly by others as wrong. He continued at paragraph 49 –

“What the Secretary of State (or the immigration officer), in my judgment, has to do when contemplating the possible issue of a certificate under any of these provisions is to ask himself a single question: ‘was this application or claim in reality simply a delaying tactic?’ (in practice, the question of whether there is some other illegitimate purpose as well will, I suspect, rarely arise.) In answering questions he can have regard to everything that might assist him, including the timing of the application (for example if it was made immediately before a removal direction was due to take effect); whether the claim could have been advanced earlier and was not; whether, if the claim was advanced earlier, there is now material new evidence relating to it; and whether there could be any substance in the claim.’”

At paragraph 50 he said –

“I do not think that the purpose of section 73(8) is either to enable the Secretary of State to exclude appeals of hopeless cases or to require claimants to bring all claims within one appeal. The purpose, in my view, is to enable the Secretary of State (or the immigration officer) to exclude the right of appeal where an application has been made as a delaying tactic.”

As to the decision to certify in the instant case the deputy judge found that the Secretary of State’s reasons for that decision were in paragraph 11 of his grounds of opposition in these proceedings, and at paragraph 53 the deputy judge continued -

“There he says that he must ask himself whether the arguments now being put forward could not have been submitted before, so that the section must be written as providing that the claimant had no other legitimate purpose for making the application at the stage that he did. That approach, as I have said, is not in my view correct in law. Had the Secretary of State applied the approach that is in my view correct, and asked himself whether the application had simply been made to delay the claimant’s removal, he might well have concluded otherwise than he did.”

The claim was therefore allowed and the certificate issued under section 73(8) was quashed.

Mr Wilken, for the Secretary of State, invited us to consider section 73 in the context of Part IV of the 1999 Act. Clearly Parliament has decided that in certain circumstances there should be no right of appeal, and has given the Secretary of State power to decide by certificate when the right of appeal should be curtailed. That is not surprising because throughout the law the aim is to achieve finality as soon as possible, and to that end further proceedings dealing with the same or substantially the same subject-matter are always discouraged. Under Part IV the right of appeal will not be curtailed when, in the opinion of the Secretary of State, there is in the application, the claim or the grounds of appeal under consideration a discernible “legitimate purpose”. Those words are used again and again in the statute to give the Secretary of State a wide area of discretionary judgment, and, as is clear from subsection (1) section 73 only applies where the claimant has already appealed and had his appeal finally determined. In that section it is noteworthy that the words used in subsections (2)(c) and (8)(b) are “legitimate purpose” and not “manifestly unfounded”, although those latter words are to be found in section 72(2)(a). It is therefore reasonable to conclude that in section 73 the test is different.

In reality what happens is that after the appeal process has been exhausted the Secretary of State receives from a claimant or his legal advisers a set of representations. He must then consider whether the representations simply go over old ground or should be regarded as a fresh claim. As to that, paragraph 346 of the Immigration Rules (HC395) provides -

“Where an asylum applicant has previously been refused asylum during his stay in the United Kingdom, the Secretary of State will determine whether any further representations should be treated as a fresh application for asylum. The Secretary of State will treat representations as a fresh application for asylum if the claim advanced in the representations is sufficiently different from the earlier claim that there is a realistic prospect that the conditions set out in paragraph 334 will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:

(i)

is not significant; or

(ii)

is not credible; or

(iii)

was available to the applicant at the time when the previous application was refused or whenever any appeal was determined.”

Paragraph 334 provides –

“An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:

(i)

he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and

(ii)

he is a refugee, as defined by the Convention and Protocol; and

(iii)

refusing his application would result in his being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.”

Although paragraph 346 applies only to applications for asylum it was agreed between counsel and accepted by the court in Ratnam v Secretary of State [2003] EWHC 398 Admin that in practice the same approach is applied to claims under the Human Rights Act, and Mr Wilken told us that for present purposes we should proceed on that basis. It follows that in each of the cases with which we are concerned before the Secretary of State even began to consider whether or not to issue the certificate now under challenge he must have concluded that the claim advanced in the fresh representations was sufficiently different from the earlier claim to give rise to a realistic prospect of the claimant being able to satisfy the Secretary of State that refusing his application would breach the claimant’s human rights within the meaning of section 65 of the 1999 Act, or (in an asylum case) that his removal in consequence of the refusal would be contrary to the Geneva Convention.

The next stage was for the Secretary of State to consider the general power to certify set out in subsections (7), (8) and (9) of section 73. It is illogical that the general power which could be used in relation to any free-standing application made to the Secretary of State after the final determination of an original appeal should be at the end of the section, and that illogicality has been corrected in the 2002 Act, but undoubtedly the section is designed to operate in different situations. Before reliance can be placed upon subsections (2) and (3), or upon subsections (4), (5) and (6) the claimant must have served a notice of appeal in relation to a decision taken as to his fresh claim, but that is not a condition precedent to the operation of subsection (7), (8) and (9).

If the Secretary of State does not certify pursuant to subsections (7), (8) and (9), and the claimant then serves a notice of appeal the Secretary of State can then consider whether to certify in the light of what is in the notice of appeal. If it contains grounds which were considered in the original appeal that may open the door to a certificate pursuant to subsections (4), (5) and (6), but only if a notice under section 74 was served on the claimant before the determination of his original appeal.

Finally, in relation to the operation of section 73, if the fresh notice of appeal claims that the decision now under challenge is in breach of the claimant’s human rights the Secretary of State can certify that in his opinion that claim could have been made earlier either in response to a notice under section 74 or in the original appeal. The question then arises as to why the claim is being made now, and that is why subsection (2) contains paragraphs (b) and (c). The same question can be asked in relation to an application which causes the Secretary of State to consider whether to exercise the general power in subsection (7), (8) and (9), so the same two paragraphs appear in subsection (8), but they do not feature in subsections (4), (5) and (6), because the object of those subsections is to prevent a claimant from using the appellate process to go over the same ground for a second time.

That analysis does, Mr Wilken contends, show that section 73 is all about timing and when that is appreciated the words “no other legitimate purpose” which appear in subsections (2)(c) and (8)(b) cannot simply be equated with lack of merits. Section 73(2)(a) could apply to a claim which may have some merit but in relation to which the Secretary of State would be entitled to ask himself why this claim is being made now? That is the setting in which subsections (2)(b) and (c), and (8)(a) and (b) fall to be considered.

Mr Wilken took us through the authorities. He submitted that in Ngamguem Ouseley J adopted an approach to section 73 which was too close to the antecedent question of whether there was a fresh claim, and that in Vemenac Burton J was wrong to focus as he did on the merits. At that time counsel then appearing for the Secretary of State submitted that to be the correct approach, but, Mr Wilken submits, in order to find that for the purposes of section 73(2)(c) there is no other legitimate purpose for a claim it is not directly relevant to consider whether it is manifestly unfounded or so hopeless as to be not properly arguable. I need not refer to Soylemez [2003] EWHC 1056 Admin because in that case the approach adopted in Vemenac was agreed to be correct, but Davis J expressed doubts about it. As to Balamurali Mr Wilken submits that in general the approach of Mitting J was correct, but that the words “no other legitimate purpose” are more than a long stop against potential injustice, and the discretion to be exercised by the Secretary of State is not as wide ranging as the judge suggested in paragraph 19 of his judgment, because most of the factors relevant to discretion will have been considered at an earlier stage in the process. In Duka [2003] EWHC 1262 Admin Collins J in an extempore judgment recognised the existing difference of judicial opinion, and favoured the approach of Mitting J, but he then said at paragraph 40 -

“When Parliament uses the expression ‘the appellant had no other legitimate purpose’, it means no more than it says: namely, that there is no good reason, no legitimate reason, for pursuing the claim, and that is because it is a bad claim, and if the Secretary of State’s view that it is a bad claim and thus there is no legitimate reason for pursuing it is correct, then he is entitled to certify.”

That, Mr Wilken contends, was really a return to the approach based on merits.

An appeal in Alia has been stayed pending the outcome of this case, so Mr Wilken did not dwell on that decision, but as to Sandhu he pointed out that the human rights claim having been rejected, and there being no appeal from that part of the decision, there was and is no practical purpose in quashing the certificate. Nevertheless Mr Wilken submits that the approach of the deputy judge was wrong. He was wrong to look to section 76 for assistance in construing section 73 because the purpose of section 76 is to enforce section 74, and thus to ensure that all possible grounds of appeal are considered at the same time. Section 76(3) has to be read in that context, and that also applies to section 76(5) which provides-

“If the applicant claims asylum after the end of the period prescribed under section 74(6)(b), no appeal may be made under section 69 if the Secretary of State has certified that in his opinion -

(a)

one purpose of making the claim for asylum was to delay the removal from the United Kingdom of the applicant or of any member of his family; and

(b)

the applicant had no other legitimate purpose for making the application.”

In particular Mr Wilken is critical of the conclusion of the deputy judge in paragraph 45 of his judgment that delay in section 73 refers only to “pure tactical delay, a delaying tactic designed to ward off the day when removal is effected”. In Mr Wilken’s submission all that is required is a simple factual assessment of whether one purpose of the application was to delay removal, a requirement which will be satisfied in nearly all cases. Furthermore, Mr Wilken does not accept that the requirement to consider whether there was any other legitimate purpose falls away in the way suggested by the deputy judge in paragraph 49 of his judgment, which is quoted above.

Mr Wilken submits that both under section 73(2) and under section 73(8) delay and ability to raise the point earlier are relevant factors. If the Secretary of State is considering certification under section 73(2) the ability to raise the point earlier will be explored at paragraph (a), so no further consideration of it will be required in relation to paragraph (c), but that will not be the position if certification is being considered under subsection (8). With that qualification Mr Wilken submits that in whichever of those ways certification is being considered the Secretary of State will be asking himself whether, given the history, there is justification for the claimant being able to pursue a further claim or application now. Before he answers that question the Secretary of State will inevitably have given some consideration to the merits in order to decide whether he is dealing with a fresh claim, and when he is considering certification he will apply a two stage test, asking himself -

“(1)

Is there any reason, other than merits, for this application being made at this stage, and –

(2)

If so, does that reason make any difference?”

As to the first stage Mr Wilken submits that possible reasons or purposes could be a significant change in the law, a major change in personal circumstances (such as marriage), a change in the country to which the claimant would be returned of such importance as to raise new asylum or human rights grounds, physical inability to make the claim properly at any earlier stage because of serious problems of communication, or significant failings on the part of previous advisers (sufficient to warrant a report to the OISC). If the first stage is not crossed the second stage does not have to be considered, but in some cases it may be relevant, and at both stages the test is subjective. Working within the normal judicial review boundaries what matters is the opinion of the Secretary of State, and his perception of whether a purpose is legitimate.

Turning to the facts of the present cases, Mr Wilken submits that the decision of Mitting J in Balamurali should be upheld. Mr Balamurali was served with a one-stop notice in May 2001, and in August 2001 Dr Taghipour diagnosed mild post traumatic stress disorder and moderate to severe depression with anxiety. The doctor recommended treatment under the care of a psychiatrist, and said that Mr Balamurali’s condition would deteriorate further if he was subjected to stressful conditions, for example by deportation. All of that was considered by the adjudicator, who was not impressed. Nine months later, on 14^th July, 2002, the same psychological condition was relied upon when Mr Balamurali’s solicitors sought exceptional leave to remain. There was then a fresh report from Dr Coleman which indicated some deterioration, and for the first time there was express reliance on Article 8, but the close link which exists in mental health cases between Article 3 (which was relied upon in 2001) and Article 8 was spelt out in Bensaid [2001] 33 EHRR 205. The link is such that Article 8 should have been raised in 2001, but failure to raise it expressly at that time cannot lead to the conclusion that a fresh human rights claim was being presented when it was raised in 2002.

Mr Wilken submitted that in some cases the route to certification may be blocked because it is evident that delay cannot have been a purpose of the person making the claim or application. For example, he may have the benefit of a limited leave to remain which still has some time to run, or it may not at present be possible to remove him from this country to his country of origin. But that was not the situation in the case of Balamurali. When further representations were made on his behalf on 14^th July 2002 the Secretary of State implicitly accepted that they satisfied the requirements of paragraph 346 of the Immigration Rules. He did not certify pursuant to section 73(8) but he set removal directions which, under the 1999 Act, gave rise to a right of appeal. That was a right which Mr Balamurali exercised. That closed the door to any possibility of any certification pursuant to section 73(8) because the effect of such a certification is to prevent an appeal – see section 73(9). The Secretary of State was then in a position, in the light of the contents of the Notice of Appeal, to certify under section 73(2), and/or under section 73(5). In fact he chose to certify under section 73(2) on the basis that in his opinion the Article 8 claim could have been made in 2001, a purpose of making it in 2002 was to delay removal, and Mr Balamurali had no other legitimate purpose (as he might have had if there had been a dramatic change in his circumstances). That approach was, Mr Wilken submits, entirely correct. He also certified under section 73(5), on the basis that the Article 3 claim had clearly been considered and rejected in 2001, and thus certification pursuant to section 73(5) was also correct.

As to Sandhu Mr Wilken submits that the conclusion of the deputy judge as to certification was incorrect because his approach to section 73 was flawed. At this stage the certification is really of little relevance because the unchallenged decision in relation to the alleged contravention of human rights is decisive. There was no justification for a second application on the basis of a marriage which was in existence when the first application was properly determined, and the birth of a child did not radically change the situation.

Mr Walsh, for Balamurali, initially accepted Mr Wilken’s approach to section 73, but on reflection resiled from it, and submitted that section 73(8) should not be considered until after other possibilities of certification have been exhausted. That, he submitted, accords not only with the layout of the section but also with the guidance which can be derived from the Explanatory Notes published by the Secretary of State in relation to the 1999 Act. In R v A (No 2) [2002] 1 AC 45 at paragraph 82 Lord Hope indicated that it is legitimate to use such notes for the purposes of clarification, and the relevant paragraphs in the notes read -

“216.

Section 73 makes provision for cases where a person has appealed and that appeal has been finally determined, but there has been a further decision, against which a notice of appeal has been lodged. Subsections (2) and (3) provide that the Secretary of State may certify a human rights claim made in such a notice to the effect that it could reasonably have been made before, is designed to delay removal and has no other legitimate purpose. On certification the human rights aspect of the appeal is to be treated as finally determined.

217.

Subsections (4) and (5) prevent a person from pursuing an appeal based on matters which were considered at the earlier appeal, if the Secretary of State certifies that they were so considered.

218.

Subsections (7) to (9) effectively allow an immigration officer or the Secretary of State to certify that a further application is being made to delay removal and for no other legitimate purpose; if certified, no appeal can be brought.”

I have to say that in my judgment those paragraphs do not really assist the submission of Mr Walsh. The wording seems to me to be largely neutral.

More generally Mr Walsh pointed out that unfettered rights of appeal, in no way dependent on merits, are granted by sections 65 and 69 of the 1999 Act, and section 73 limits further appeals. It should therefore, he submits, be narrowly construed. But of course, at least to a large extent, section 73 does only deal with issues which have already been determined, or could have been determined had they been ventilated at the proper time, even if they are raised in such a way as to amount to a fresh claim for the purposes of paragraph 346 of the Immigration Rules.

When the Secretary of State considers, for the purposes of section 73(2)(b) or (8)(a) whether one purpose of the claim or of making an application is to delay removal from the United Kingdom Mr Walsh submits that it is inappropriate to think in terms of putting off the inevitable. So Mr Walsh accepts that in most cases one purpose will be to delay removal, but he points out that if the claimant is outside the jurisdiction, or already has limited leave to remain, the Secretary of State could not be satisfied in relation to subsection (2)(b) or subsection (8)(a) so, under those subsections, no possibility of certification could arise.

Mr Walsh now accepts that legitimate purpose should not simply be equated with a merits test, but he submits that not too much should be made of the failure of the draftsman to use in section 73 the words “manifestly unfounded” which were used in section 72. He submits that it is possible to have a legitimate purpose in putting forward a claim which is manifestly unfounded, but he accepts that when looking for another legitimate purpose merits may be a factor. Timing can also be relevant, and one of the strongest pointers may be the prospects of success before an adjudicator.

Turning to the facts of his client’s case, Mr Walsh pointed out that when his appeals were dismissed in May 2000 and September 2001 he was not wholly disbelieved, and when fresh representations were made in July 2002 he had been in administrative detention since May 2002. He was not on the point of removal, so it was not self-evident that the representations were made to delay removal, and the report of Dr Coleman did show that his condition was worse than it had been when he was examined by Dr Taghipour. That was supported to some extent by the clinical notes relating to his period in detention. In Oniboyo [1996] IAR 370 Sir Thomas Bingham MR had set out at 381 the test of a new claim, which is now to be found in paragraph 346 of the Immigration Rules, and in Senkoy [2001] IAR 399 Peter Gibson LJ made it clear that there does not have to be a change in the nature of the persecution to be feared, saying at 410 -

“When clear and cogent evidence of the same fear of the same persecution for the same Convention reason, let us say of the possibility of the execution of an applicant on return, becomes available which was not previously not available, can it really be right to treat that as not amounting to a new claim for asylum?”

Mr Walsh submits that the Secretary of State should have recognised that to be the situation in the case of Balamurali. In fact when the fresh representations were made the Secretary of State responded with removal directions, and when those directions were appealed the representations were rejected, and the certificates were issued.

As to the judgment in the court below, Mr Walsh submits that Mitting J did not sufficiently construe other legitimate purpose. Had he done so he would have recognised that there was such a purpose in the case of Balamurali encapsulated in the extent to which the medical evidence and the support for his claim had changed.

On behalf of Sandhu Mr Kirk submitted that Mr Bartlett QC was right in his approach and in his conclusion. Mr Kirk accepted that the over-all object of Part IV of the 1999 Act was to ensure that all available grounds on which a claimant might be able to rely were considered at the same time, but he submitted that in construing section 73 it is not necessary to look first at the wide provisions of subsection (7) and (8), and that when considering delay, for the purposes of subsection (2)(b) or (8)(a) it is necessary to look at the situation in the round, as is indicated in many of the authorities, so the test to be applied in considering certification pursuant to subsection (8) can be re-worded thus: in the opinion of the Secretary of State –

(a)

was one purpose for making the application to delay removal of the applicant?

(b)

If there was more than one purpose, was there any other legitimate purpose?

In the case of Sandhu there was a new feature, the child born in April 2002, and so, Mr Kirk submits, the Secretary of State should not in March 2003 have formed the opinion that the fresh claim pursuant to Article 8 was simply a delaying tactic. Furthermore if he did form that opinion it was incumbent upon him to give proper reasons for it.

In my judgment although section 73 could and should have been much better expressed its meaning and purpose can be understood if sufficient weight is given to its position in the statute, and to the procedure in relation to which it is designed to operate. Part IV of the Act deals with various aspects of appeals and, as it seems to me, it has three main objectives –

(1)

To grant specific rights of appeal, for example to those who claim that in the context of immigration their human rights have been infringed (Section 65) or who have been refused asylum (section 69).

(2)

To ensure that if an appeal is brought it will be comprehensive and cover every available ground for seeking relief (section 74).

(3)

To prevent abuse of the appellate system – see for example section 73, which only operates where one appeal (the original appeal) has been finally determined.

I turn now to procedure. If any representations are made after one appeal has been determined the Secretary of State will consider them in order to decide whether they amount to a fresh claim. If he concludes that they do, but his decision on that fresh claim is not in favour of the applicant, that is a decision on an application which would normally give rise to the possibility of an appeal and appeal notices will be sent out to the applicant. Conversely if he decides that the representations do not amount to a fresh claim the applicant can only obtain relief by seeking judicial review.

Where the Secretary of State makes a decision which does give rise to the possibility of an appeal he can then contemplate certification pursuant to section 73(8). To do that he must first form an opinion as to whether one purpose, not necessarily the only purpose, of making the application was to delay removal from the United Kingdom of the applicant or of any member of his family. In subsections (7) and (8) the word used is appellant, but that is only because of the special meaning given to that word in subsection (1). If the Secretary of State does not conclude that a purpose of the applicant was to delay removal there can be no certification under section 73(8). Very often, however, the Secretary of State will reach the opposite conclusion, and then he will go on to consider whether in his opinion the applicant had any other legitimate purpose for making the application. This consideration will be given after he has decided that the fresh claim has, for whatever reason, to be rejected. Was the purpose simply to buy time, or did the applicant have in addition some other aim worthy of consideration, such as a desire to bring to the attention of the Secretary of State a significant change in the law, in the circumstances relevant to his case. At that stage the Secretary of State may well be, in one sense, addressing the merits, on which he will have formed a view but that depends on how the case is presented. The object of the Secretary of State will be to ascertain whether, in his opinion, the applicant had some worthwhile reason other than to buy time in putting forward his application in the form in which it is presented at this particular stage. In this context it will no doubt be material to consider whether what is now being said could have been said at some earlier stage.

If the Secretary of State decides not to certify pursuant to section 73(8) and the applicant exercises his right of appeal the opportunity to certify pursuant to section 73(8) is lost until that appeal has been disposed of because the sanction in relation to section 73(8) is to prevent an appeal. But the Secretary of State can examine the notice of appeal to get rid of grounds considered in the original appeal – see section 73(5) – and in relation to any claim alleging breach of human rights he can consider the possibility of certification pursuant to section 73(2). In that subsection if he forms an opinion adverse to the appellant in relation to paragraphs (a) and (b) he will again consider whether one purpose was to delay removal and whether the appellant had any other legitimate purpose, and the process will be the same as in relation to subsection (8) save that because of the existence of paragraph (a) the Secretary of State will have already satisfied himself that what is now being said could reasonably have been said at two specific earlier stages.

It follows that in general I accept the submissions made to us by Mr Wilken, and adopt an interpretation which is similar to but not quite identical with that adopted by Mitting J in Balamurali. On the facts of that case it seems to be plain that the Secretary of State was entitled to certify as he did in relation to Article 3 under section 73(5) and in relation to Article 8 under section 73(2), so the appeal of Balamurali should in my view be dismissed.

For the reasons I have given it seems to me that the approach adopted by the deputy judge in Sandhu was not correct. When the approach which I believe to be correct is applied to the facts which were before the deputy judge it seems to me that the Secretary of State was entitled to certify as he did, and I would therefore allow the appeal, in relation to the order of the deputy judge quashing the certificate. As with all decisions which affect the rights of individuals it is important that the reasons for issuing a certificate are properly explained and the deputy judge drew attention to the fact that in the case of Sandhu it was necessary to look to the grounds of objection in relation to the judicial review proceedings in order to ascertain why the Secretary of State acted as he did. In the light of the deputy judge’s decision that Mr Sandhu’s challenge to the Secretary of State’s human rights decision has failed, his original application for judicial review will, of course, remain dismissed.

I agree.

I also agree.