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

LORD JUSTICE CHADWICK: I will ask Lord Justice Buxton to give the first judgment.

LORD JUSTICE BUXTON: The appellant, Mr Borak, complains of a decision of Harrison J in the Administrative Court made on 30 July 2004. That was on an application for judicial review of a decision of the Secretary of State in June 2003 to certify the claimant's fresh asylum claim under section 96(2) of the Nationality Immigration and Asylum Act 2002. It will be convenient now to set out section 96(2), which reads as follows:

It is necessary to say something, indeed quite a lot, about the lengthy history that has culminated in Harrison J's order. Mr Borak is a Croatian citizen of Serbian ethnicity. He entered this country as long ago as 8 January 1999 and claimed asylum here. Since that date he has been more or less continuously engaged in the immigration jurisdiction of this country. His asylum application was refused by the Secretary of State and he appealed under what was then section 8(1) of the Asylum and Immigration Appeal Act 1993. When we come to look at the section 96(1)(a) claim, which depends upon comparison of two different applications, no account will be taken of that first asylum application; that is because owing to the drafting of the 2002 Act that application does not fall within the ambit of section 96. It is, however, necessary to say something about that application and its outcome because it has an effect on arguments that have been adduced in the case.

That asylum appeal was heard by an adjudicator on 11 August 2000 and was dismissed by him. The central part of that application was Mr Borak's assertion that he would be unable to return to Croatia because he feared that he would be there conscripted into the Croatian army, which he alleged had been responsible in Croatia for the murder of his father and of some members of his family. The adjudicator did not accept the factual basis of Mr Borak's claim. He said that the accounts that he had given had been inconsistent, and he did not accept that Mr Borak had good reason to think that the military had in fact murdered his father. For those and other reasons he concluded that fear of persecution by the military was not the reason why Mr Borak had left Croatia. That was sufficient to dispose of that application. It does not appear that there was any appeal in that case, nor indeed could there have been, since the adjudicator had dealt with the matter on the basis of lack of credibility.

On 12 October 2001 Mr Borak lodged what is colloquially called a "one-stop" statement with the Secretary of State, this time under the legislation by then obtaining, section 75 of the Immigration and Asylum Act 1999. He alleged that to return him to Croatia would cause this country to be in breach of Mr Borak's rights under Articles 3, 8 and 14 of the European Convention on Human Rights. Although Articles 8 and 14 were included in that claim the effective basis of it was a claim in respect of Article 3. That claim was refused by the Secretary of State. Mr Borak again appealed. That appeal was dismissed on 10 June 2002. In that appeal Mr Borak had alleged again that his father and other relatives had been murdered in 1995, and that the Croatian authorities had not properly dealt with those responsible. He stated that he feared that if he returned to Croatia he would be persecuted, to a level bringing him within Article 3, by extremists who had not been dealt with by the Croatian courts in Croatia, and by the people who had killed his father.

The adjudicator in this appeal pointed out that Mr Borak had not adduced any new evidence that had not been available at the time of his asylum appeal, apart from one witness who was of no significant consequence. The adjudicator said that the finding of the first adjudicator that Mr Borak did not leave Croatia because of fear of persecution coincided with the view he himself had formed, looking at the decision of the first adjudicator and the matters then before him. He concluded that there were no substantial grounds for thinking that Mr Borak would be subject to treatment that would breach his Article 3 rights if he were to be returned there. He therefore dismissed the appeal. Leave to appeal against that determination was refused by the Immigration Appeal Tribunal on 10 July 2002. Removal directions were then set for the 14 December 2002, but for reasons unexplained Mr Borak did not leave the country on that date.

On 24 December 2002 his solicitors made further representations by sending to the Secretary of State documents which had been produced by the claimant's brother who is resident in the United States. The thrust of these new representations was that it had been discovered by the brother that a General Gotovina had been indicted by the International Criminal Tribunal for the former Yugoslavia at the Hague, accused of, amongst other things, the murder of the claimant's father, uncle and aunt, to which Mr Borak had alluded to in his original applications. The contention was that General Gotovina was regarded as having heroic status in Croatia, and Mr Borak, if he were to return there, would inevitably be associated with his family that had been so severely treated by General Gotovina or his associates, and would suffer persecution on those grounds, again which the authorities of that country would not be able to control.

The Secretary of State's position was initially that the new material made no significant difference to the original asylum claim, and he therefore rejected the representations. However he was eventually persuaded by those acting for Mr Borak that the representations should be treated as a fresh claim. The Secretary of State so indicated in a letter dated 25 June 2003, but he went on to refuse Mr Borak's claims in that same letter. The nub of the Secretary of State's conclusion was that on the basis of information that was available to him the police force and authorities in Croatia would afford Mr Borak sufficiency of protection for the purposes of the Refugee Convention were he to return there. Also for that reason there would be no question of Article 3 being breached, since he would not be persecuted in the way that he claimed in his application.

The Secretary of State went on to say that the information that had been obtained from the claimant's brother would have been available to Mr Borak at the time of his human rights appeal and should have been raised in evidence at that time.

The Secretary of State then went on to issue the certificate of which complaint is made. I have already set out the statutory provision under which he acted. He said that he had taken the decision to certify the claim under section 96(2)(a) because the claims now made had been previously considered and dismissed at an earlier appeal. He also cited under section 96(2)(b), saying:

I deal first with the 96(2)(a) point. This raises the correct construction of the expression in section 96(2)(a):

There was a significant degree of agreement in the court below, and as I understood it in this court also, as to the meaning of the word "ground" in this context. The judge in paragraph 19 quoted, and said that both parties had accepted as correct, the analysis of Mitting J in R (on the application of) Balamurali v Secretary of State for the Home Department [2003] EWCH 1183 (Admin), when he said:

It is therefore agreed - and I would share that agreement - that a ground in this context, literally understood, is the application of particular legal rules to a set of facts to produce a legal result in the case in question. Here, the case before the judge and below proceeded on the basis that there was no difference in the facts as between the claim under the European Convention on Human Rights and the Refugee Convention claim. The appellant, however, argues that there is a significant difference in law between those two matters, and therefore the necessary condition of the same conjunction of factual and legal grounds under section 96(2)(a) is not satisfied.

I have already set out the Secretary of State's submission in respect of that argument. The judge accepted the submission just indicated. He said in paragraph 38 of his judgment:

I cannot agree with that analysis. Once it is accepted, as it rightly is, that the word "ground" comprises both the factual and the legal grounds for contending that the subject should not be removed from this country, then it is inevitably necessary to look at what has to be proved as a matter of law in each of the respective applications: even though at the end of the day the outcome, as to whether the subject is to be removed from this country, would be the same. Mr Tam, who argued this case carefully for the Secretary of State, said the reality was that in most cases - and in particular in what he described as "run-of-the-mill" cases such as he would characterise the present - the European Convention on Human Rights and the Refugee Convention march hand in hand. I fear that that is too simplistic an analysis.

Although there will be many cases (of which this seem to be one) where identical facts may be relied on, the legal relevance of those facts is bound to differ as between a Refugee Convention and a European Convention on Human Rights claim, because of the considerable differences between the respective legal structures of those two heads of the law. I have mentioned a few of those, none of which I apprehend are in fact controversial. First, the Refugee Convention requires demonstration of persecution on ground of race, religion and other matters. The Article 3 application requires none of that. That is demonstrated by the typically contested case under Article 3, at least as seen in this court, the exclusion of a sick person from medical facilities that are available in the United Kingdom but not at home. On the arrival of such a person in his home country he is not going to be persecuted. He will suffer because he has whatever illness it is that he is unfortunate enough to suffer from, and not because of his race or religion.

Second, the issue under the Refugee Convention is whether, because of the attitude of the authorities in the home country, the subject is entitled to protection of a signatory country of the Convention. The issue under the European Convention on Human Rights, on the other hand, is whether by sending the subject back to the home country the United Kingdom will in this country breach its own local obligations under the European Convention on Human Rights by treating the person as Article 3 forbids.

Third, the level of ill-treatment required to be established differs as between the two Conventions. Take this very case, where the first application is under the European Convention on Human Rights, the second is under the Refugee Convention. Under the European Convention, a very high level indeed of ill-treatment, mistreatment or of illness or distress has to be established before Article 3 is breached. The fact that that standard is not reached in an Article 3 application does not in itself indicate what the outcome would be in an application under the Refugee Convention, where persecution has to established, but by no means necessarily persecution leading to the sort of ill-treatment that is required for Article 3.

Fourth, under the Refugee Convention ill-treatment in the home country must be by the political authorities of that country or by persons whom they are unable or unwilling to control. Whilst, as in the present case, action by the authorities of the home state will usually be a feature of the type of European Convention case that depends on fear and violence, it is not by any means a necessary condition of a Human Rights case. It is not irrelevant to mention that that distinction is one specifically made by the European Court on Human Rights itself in D v The United Kingdom [1997] 24 EHRR 423, a distinction recognised as such by Lord Bingham of Cornhill in paragraph 12 of his speech in the case of Ullah.

Fifth, Ullah, and Razgar which marches hand in hand with it, have established that in exceptional cases interests in the home country other than under Article 3 may be protected under the European Convention on Human Rights, for instance the right to family life, Article 8, or the right to practise religion under Article 9. That latter possibility was recognised by Lord Bingham in paragraph 21 of his speech in Ullah. Such interests are not protected per se by the Refugee Convention.

Sixth, events occurring in the United Kingdom may give rise to European Convention rights affecting the decision to expel, in particular the creation of family life in the United Kingdom. Such an event cannot affect the rights of the subject under the Refugee Convention, however much it is open to the Secretary of State to exercise discretionary powers not to expel in such a case; and although the case itself was on a somewhat different basis, I venture to suggest that that analysis is certainly not inconsistent with the decision of this court in R (on the application of) v Zenovics v Secretary of State for the Home Department [2002] EWCA Civ 273.

As we have seen, however, the judge was persuaded that he should adopt a "purposive" approach to construction, the purpose being to achieve finality. He held that at least in this case there was no difference in substance between the issue in the asylum case and in the European Convention case, and for that reason the Secretary of State was entitled to certify. That approach is adopted in this appeal by the Secretary of State.

There are, however, a number of difficulties about that approach. First, it is simply not correct to say that in this case the "issues" are the same. Certainly under both the claims that Mr Borak wishes to bring he claims fear of ill-treatment by extremists, as the judge pointed out in paragraph 42 of his judgment. But for the reasons that I have ventured to set out the implications of that ill-treatment, and what he has to prove about it, differ widely between the two claims.

Second, and for that reason, this part of the judge's determination seems to me straightforwardly to conflict with the agreed meaning of the term "ground" that he appears to have adopted elsewhere in the judgment. If a purposive approach is to be adopted to this legislation in order to place a meaning on the word "ground" different from that which is in its normal sense appears to carry, it is necessary to say that the word "ground" does not include the legal ground contending for non-removal, but rather means something like "legal argument that on the facts of this case would have the same eventual outcome." That is not what the statute says. Whilst I would not undervalue the importance of construing a statute in a purposive manner, that has still to be an exercise in construction: that is to say, a meaning has to formed that the words can carry which is different from the literal meaning. It was conspicuous in this case that not only did the judge not offer such a meaning, but no such meaning was essayed by the Secretary of State.

Third, the effect of the judge's construction is to inhibit Mr Borak's access to the court. As Mr Macdonald QC for the appellant rightly pointed out, the court will be very reluctant to adopt a construction that prevents the exercise of what otherwise is a right of appeal or access to the court except in the most obvious circumstances. Authority is hardly necessary for that point, but in the present jurisdiction Mr Macdonald refers us, rightly, to Secretary of State for the Home Department v Saleem [2000] Imm AR 529 (CA), where those considerations are extensively set out and explained in the seminal judgment of Hale LJ (as she then was). From what I have seen of the case and without deciding anything at all I would be minded to agree that, in the light of what has already been found against him, Mr Borak's prospects of success on the Refugee Convention claims are not promising. But the issue under section 96(2) is not a question of the prospects of success in the certified claim. Nor is it a question of whether on the facts as found in the earlier claim the new claim is not likely to succeed. In other words, this is not something like a Civil Procedure Rules Part 24 application. If the Secretary of State was intended to have that power the legislation would say something different. What has to be established under section 96(2)(a) is that the case that is sought to be brought has already actually been tried. Here, that is not the case. I therefore consider that the judge erred in the view that he took of section 96(2(a).

I turn to the 96(2) (b) issue which involves the contention that in his one-stop appeal Mr Borak "should" have included his present contentions with regard to asylum based upon the new information found upon the indictment of General Gotovina. It is relevant to mention the chronology. General Gotovina was originally indicted in the Hague in May 2001. That indictment, for reasons that are obscure and need not concern us, was not actually made public until July 2001 when, we were told, it was placed upon the internet. The one-stop notice, in which it is said Mr Borak should have included his complaint based on the General Gotovina indictment, was served by him on 12 October 2001.

I have already set out the process under that claim. The hearing before the adjudicator was in May 2002, and came to an end on 10 July 2002 when the Immigration Appeal Tribunal refused leave to appeal. It is, I understand, accepted in this case that Mr Borak did not in fact become aware subjectively of the Gotovina indictment until five days after that, on 15 July 2002, by receiving information from his brother.

The judge decided this point in favour of the Secretary of State. In paragraph 47 of his judgment, having said that in view of what he had found under section 96(2)(a) it was not strictly necessarily to deal with the matter, he went on to say this:

When this appeal was argued the court considered that finding to be somewhat surprising, in view of the fact that, as the chronology demonstrates, Mr Borak was not aware of the General Gotovina indictment not only when he served the one-stop notice but even when the whole process under that one-stop notice had expired. However, the matter was put into context if one goes back to paragraph 37 of the judgment when the judge said this:

I will return to the latter part of that submission in due course. At this stage, however, we have to consider whether the judge's conclusion was indeed based upon a concession or acceptance that the Secretary of State could act on the existence of the Gotovina information in the public domain even though Mr Borak himself had not heard about it.

We heard submissions not only from Mr Macdonald but also from Miss Cronin on this matter. It appears - and there is no shred of suggestion that anything has been said to us other than in total frankness, as one would expect - that what the judge concluded may well not have been what was intended to be said to him; but at the same time it is quite clear that that is what he understood, as set out in his paragraph 37. As was pointed out in argument it was not a submission or contention that the judge should necessarily have rejected as inappropriate, because "should include" can refer to information that by due diligence a person ought to have found out. In other words it is not self-evidently clear that the subjective knowledge of the party determines the matter.

It is also the case that there is no complaint in the grounds of appeal about the judge's reasoning or understanding in paragraph 37. The section 96(2)(b) appeal is based solely on a legal point already foreshadowed by the judge's paragraph 37, to which I will in due course come. It seems to me, therefore, that it is not now possible to go back on what the judge understood as set out in paragraph 37. I would hold - but without deciding the limits of section 96(2(b) if properly understood - that the judge did not err in law in deciding as he did on the basis of the case as it was put before him.

I turn to the other ground with regard to 96(2)(b) that was put before the judge and repeated before us by Mr Macdonald. Broadly, this was that the information about the Gotovina indictment was only a matter of new facts; it was not a new "ground"; so there was no obligation in any event to include it in the section 75 statement.

I cannot accept that submission in the light, firstly, of the actual wording of section 75(2), which says:

The new asylum claim - that is to say that which the Secretary of State has certified - was and is a new ground additional to the human rights ground. It was different from the old asylum claim, as indeed Mr Borak's solicitors had successfully argued in getting the Secretary of State to consider it at all. It is not possible to say, as Mr Macdonald argued, that the ground did not need to be included in the section 75 notice because Mr Borak had already had one asylum application. That 1999 application was dead and buried. The new facts enabled him, as he thought, to bring a new asylum claim based upon different facts from its predecessor.

This case fell within the plain language of section 75(2). On the assumptions that the judge was entitled to make the asylum claim should have been included in the one-stop application, and section 96(2)(b) therefore gave the Secretary of State power to certify.

I would therefore reverse the judge in respect of his findings on section 96(2(a) but I would dismiss the appeal because certification was open to him under section 96(2)(b).

LORD JUSTICE CHADWICK: I agree.