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

The claimant seeks judicial review of a decision of the Secretary of State for the Home Department dated 25 June 2003 to certify the claimant’s fresh asylum claim under section 96 (2) of the Nationality, Immigration and Asylum Act 2002 (“the Act of 2002”).

The claimant is a Croatian citizen of Serbian ethnicity. He entered the United Kingdom on 8 January 1999 and claimed asylum. Following a refusal of his asylum claim by the Secretary of State, he appealed under section 8(1) of the Asylum and Immigration Appeal Act 1993 (“the Act of 1993”)

His asylum appeal was dismissed by an adjudicator on 11 August 2000. In paragraph 32 of his determination, the adjudicator found that the crux of the claimant’s claim was that he was unable to return to Croatia because he feared that he would be conscripted into the Croatian army which he alleged was responsible for the murder of his father and some members of his family. For reasons given by him, the adjudicator found in paragraph 38 of the determination that the claimant did not leave Croatia because of fear of persecution. In paragraph 49, in describing the claimant’s objection of not wishing to serve in a military which was responsible for his father’s murder, the adjudicator said that the claimant had given two accounts of how his father was murdered, one by extremist Croats and the other by the military. He referred to the inconsistencies in the claimant’s evidence and stated that the claimant was merely speculating about who killed his father.

On 12 October 2001 the claimant lodged a “one stop” statement with the Secretary of State under section 75 of the Immigration and Asylum Act 1999 (“the Act of 1999”), alleging breach of Articles 3, 8 and 14 of the Human Rights Convention. Following refusal of his human rights claim, the claimant appealed under section 65(1) of the Act of 1999.

His appeal was dismissed by an adjudicator on 10 June 2002. In paragraph 3 of the determination, the adjudicator described the basis of the human rights claim as being that the claimant feared that he would be discriminated against and suffer degrading treatment in Croatia if he were to be returned. The claimant had alleged that his father and other relatives had been murdered in 1995 and that the Croatian authorities had not caught and convicted those responsible. In summarising the claimant’s evidence at paragraph 7 of the determination, the adjudicator stated that the claimant feared that he would be physically ill treated if he were returned, his fear being of extremists who had not been dealt with by the courts in Croatia. He had said that his fear arose because of his ethnicity and that people who had killed his father and other relatives had been freed by the courts in Croatia because there was not enough evidence, and he had no confidence in the authorities. In paragraph 9, the adjudicator stated that the claimant’s evidence was that he feared ill treatment from the people who had killed his father. In paragraph 15, the adjudicator stated that it had been submitted on behalf of the claimant that the Croatian authorities would not be able to provide protection for the claimant, as had been shown by the fact that they had not been willing to punish those who had killed his father.

In paragraph 21 of the determination, the adjudicator stated that the claimant had not suggested that he was leading any new evidence in his human rights appeal which was not available at the time of his asylum appeal, save for the evidence of one witness who merely gave background evidence. As there was no new evidence, the adjudicator followed the guidelines in Devaseelan (2002) UKIAT 00702 and, on that basis, accepted the adjudicator’s findings of fact in the asylum appeal determination of 11 August 2000. In particular, the adjudicator referred to the finding at paragraph 38 of the asylum adjudicator’s determination that the appellant did not leave Croatia because of a fear of persecution. The adjudicator stated that that coincided with his own view and that one of the reasons for the claimant’s reluctance to return to Croatia was that it would be hard to obtain employment there.

He then went on to consider the risk to the claimant if he were to be returned to Croatia. In paragraph 22, he dealt with the claimant’s Article 3 claim. Having referred to the background information on Croatia and the number of people who had returned to that country, he said that he did not think that there was anything in relation to the claimant which would make him more likely to encounter treatment of a severity which would breach Article 3. He said:-

“I can understand the appellant’s concern at the prospect of a return because of what happened to his father, but this is not something which will necessarily lead to the appellant being at an increased risk, and, given the appellant’s evidence that he has a Croatian passport and he has already been able to return to Croatia and then leave without undue difficulty, I do not think that he has established that there are substantial grounds for believing that he would be subject to treatment which would breach his Article 3 rights if he were to be returned.”

The adjudicator then went on to give his reasons for dismissing the claimant’s Article 8 and Article 14 claims, and dismissed the appeal. Leave to appeal against that determination was refused by the Immigration Appeal Tribunal on 10 July 2002.

Following further human rights representations made by the claimant which were rejected by the Secretary of State, removal directions were set for 14 December 2002. However, on 24 December 2002 the claimant’s solicitors made further representations, enclosing a bundle of documents which had been prepared by the claimant’s brother who had achieved refugee status in America. The thrust of the new representations was that General Gotovina had been indicted by the International Criminal Tribunal for, amongst other things, the murder of the claimant’s father, uncle and aunt. The general was said to be a hero in Croatia and, as a result, the claimant feared that, with the family name of Borak, he would be associated with the family complaint and charge against the general and that he would suffer ill treatment from the Croatian community if he were returned to Croatia. The claimant’s solicitors asked the Secretary of State to treat the new representations as a fresh asylum claim.

On 17 January 2003 the Secretary of State declined to accept the representations as a fresh claim, concluding that it was not sufficiently different from the earlier claim in which reliance was placed on the murder of the claimant’s father, uncle and aunt. The Secretary of State also made the point that the documents that were produced were available when the claimant’s human rights appeal was heard and determined.

On 6 February 2003 the claimant’s solicitors made further representations, pointing out, amongst other things, that the claimant did not receive the new documents until after the human rights appeal had been determined, and re-iterating the request to treat the representations as a fresh asylum claim.

Following further representations made on behalf of the claimant on 26 February 2003, the Secretary of State, by letter dated 25 June 2003, decided to withdraw his decision of 17 January 2003 and to treat the representations as a fresh claim. Having done so, he went on to refuse the asylum and human rights claims for reasons set out in that letter.

In paragraph 11 of the letter, the Secretary of State pointed out that the effect on the claimant of his father’s death was considered by the adjudicator in his human rights appeal. The Secretary of State referred to paragraph 22 of the determination of that appeal. In paragraph 13, the Secretary of State dealt in some detail with the position in Croatia and, in paragraph 14, he said that it was against that background that he refuted the claimant’s assertion that he would face persecution because his father’s name was included in the indictment of General Gotovina. He referred to the fact that the Croatian government was committed to co-operating with the International Criminal Tribunal for the former Yugoslavia in their efforts to bring war criminals to justice. In any event, even if some elements of Croatian society may consider activities against the claimant, it was the Secretary of State’s opinion that the police force and authorities in Croatia would offer him sufficiency of protection. The Secretary of State therefore concluded in paragraph 17 that he did not accept that the claimant would face a breach of Article 3 due to his father’s inclusion in the indictment of the general. He concluded that the claimant could seek protection from the authorities in Croatia and Article 3 wouldn’t be breached by returning him there. In paragraph 19, the Secretary of State remarked that the information contained in the bundle from the claimant’s brother would have been available to the claimant at his human rights appeal and should have been raised in evidence at that time. In any event, his opinion was that the articles and reports in no way showed that the claimant would face persecution if he were returned to Croatia.

In paragraphs 22 and 23 of the letter of 25 June 2003, the Secretary of State stated:-

“22.

In accordance with Section 96(2) of the Nationality, Immigration and Asylum Act 2002, the Secretary of State hereby certifies that this immigration decision relates to an application or claim which relies on a ground which your client-

a)

raised on an appeal under Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (or under any Section of Part IV of the Immigration and Asylum Act 1999) against another immigration decision; or

b)

should have included in a statement which your client was required to make under Section 120 (or by any Section of Part IV of the Immigration and Asylum Act 1999) in relation to another immigration decision or application;

The effect of this certificate is that an appeal under section 82(1) against this immigration decision (“the new decision”) may not be brought or continued.

23.

The Secretary of State has taken the decision to certify your clients claim for the following reasons:

a)

Your client has already raised the issue that his return to Croatia would breach Article 3. However, this was previously considered and dismissed at his Human Rights appeal.

b)

Your client was required, under the one-stop appeals system to provide any and all evidence that he sought to rely on in support of his claim, at his Human Rights appeal. The information provided in the bundle compiled by your clients brother dated 15/7/02 would have been available at the time your clients Human Rights appeal was heard on 20/5/02. As this information was available at the time of the hearing, your client was required to present it for consideration by the adjudicator. Whilst the bundle was provided by your clients brother after the date of the hearing, the Secretary of State notes that the information contained therein was available prior to the hearing.”

It is that decision of the Secretary of State that the claimant now seeks to challenge in these proceedings. Permission to seek judicial review was initially refused on the papers by Maurice Kay J. (as he then was) and a renewed application was dismissed by Crane J. after an oral hearing. However, on a renewed application to the Court of Appeal, permission was granted by Buxton LJ expressly limited to the point raised in paragraphs 14 to 18 and 22 of the claimant’s skeleton prepared for that occasion. The result of permission being restricted in that way was that it was not open to the claimant to argue that, as the Secretary of State had accepted the claimant’s representations as a fresh claim, he must have concluded that the new material should not be disregarded under Rule 346 and therefore that the new material could not have been available when his human rights appeal was decided. That point, as Buxton LJ stated, had been decided against him by Crane J.

The Secretary of State’s decision to certify the claimant’s fresh asylum claim was a decision made under Section 92(2) of the Act of 2002 which, so far as relevant, provides as follows:-

“(2)

An appeal under section 82(1) against an immigration decision in respect of a person may not be brought or continued if the Secretary of State or an immigration officer certifies that the immigration decision relates to an application or claim which relies on a ground which the person-

(a)

raised on an appeal under that section against another immigration decision,

(b)

should have included in a statement which he was required to make under section 120 in relation to another immigration decision or application, or

(c)…”

By virtue of paragraph 4 of Schedule 6 to the Act of 2002, a reference to an appeal under that Act includes a reference to an appeal under the Act of 1999, and a reference to a requirement under that Act includes a reference to a requirement under the Act of 1999. The provisions of section 96(2) (a) and (b) can therefore relate to the claimant’s human rights appeal and to his “one stop” statement respectively because they arose under the Act of 1999, but they cannot relate to the claimant’s previous asylum appeal because that was made and determined under the Act of 1993.

The point in issue in this case, therefore, is whether the Secretary of State’s immigration decision to certify the claimant’s fresh asylum claim related to a claim which relied on a ground which the claimant either raised in his human rights appeal or which he should have included in his “one stop” statement relating to that appeal.

That issue, in turn, depends on the meaning of the word “ground” in section 96(2), and the application of that meaning to the facts of this case. In fact, there turned out to be no dispute over the meaning of the word “ground” because both parties were content to adopt the meaning ascribed to it by Mitting J., when dealing with that word in section 73(5) of the Act of 1999, in R (on the application of Belamurali v Secretary of State for the Home Department (2003) EWHC 1183 (Admin) when he said:-

“Both “claim” and “grounds” comprise the factual and legal grounds for contending that the claimant should not be removed from the United Kingdom. If there is a common law analogy it is with the concept of a cause of action.”

So far as the factual part of the ground is concerned, Miss Cronin, who appeared on behalf of the claimant, was content to argue the case on the basis that there was no difference, or no substantial difference, on the facts between the fresh asylum claim and the human rights appeal. That being so, it was not necessary to determine whether Miss Cronin was entitled to argue that the new material relating to the indictment of General Gotovina could be considered in the light of the restricted scope of permission granted by Buxton LJ. Miss Cronin did not concede that she was not able to rely on that evidence, but she was content to proceed without relying on it.

As it was not argued that there was any material difference in the factual aspect of the ground raised in the human rights appeal compared to that relied on in the fresh asylum claim, the argument boiled down to whether there was a difference in the legal ground relied on in the fresh asylum claim compared to the legal ground raised in the human rights appeal. As Miss Cronin candidly accepted, it is a technical point.

Miss Cronin argued that the legal ground relied on in the fresh asylum claim is different from the legal ground raised in the human rights appeal. The fresh asylum claim involved a ground relating to a risk of persecution for a Refugee Convention reason whilst the human rights appeal involved a ground under Article 3 of the Human Rights Convention. It was submitted that those two grounds are distinct and different and should not be equated for the purposes of certification under section 96(2).

Miss Cronin relied on five differences between the two legal grounds. First, the difference in treatment, in that the issue in an asylum claim is persecution for a Refugee Convention reason whereas in an Article 3 claim the issue is torture or inhuman and degrading treatment. Second, the difference relating to motivation, in that the persecution in an asylum claim must be for one or more of the reasons specified in the Refugee Convention whereas there is no need to show such motivation in an Article 3 claim. Third, the difference in the conduct of the claimant, in that a claimant under the Refugee Convention can be excluded if he has committed serious offences against humanity whereas the protection under Article 3 is absolute however dangerous the claimant may be. Fourth, the difference in the outcome for the claimant, in that a successful asylum claimant is granted indefinite leave to remain which gives him status and important entitlements, including family reunion rights, whereas a successful Article 3 claimant is given a three year period of discretionary leave which is then reviewed. Fifth, the difference in the legislation, for example section 84(1)(g) of the Act of 2002 which expressly distinguishes between whether removal of the claimant would be in breach of the Refugee Convention or would be unlawful under the Human Rights Convention. Another example given was section 83 which provides an up-grade asylum appeal, which does not involve human rights issues. Also, reference was made to the distinction between asylum and human rights claims in sections 93 and 94 of the Act of 2002 dealing with safe third countries and “white list” countries respectively.

Overall, the submission was that in their terms, consequences and appeal framework an asylum ground and a human rights ground are two different legal creatures and should be distinguished for the purposes of certification.

Miss Cronin placed reliance on the Court of Appeal decision in R (on the application of Zenovics v Secretary of State for the Home Department (2002) EWCA Civ 273. That was a case involving an asylum claim and a human rights claim where the asylum claim had been certified under paragraph 9 of Schedule 4 to the Act of 1999, but the human rights claim had not been certified. Following unsuccessful appeals to an adjudicator, the claimant sought leave to appeal to the Immigration Appeal Tribunal against the adjudicator’s determination relating to the human rights claim but the Tribunal held that the effect of the certification of the asylum claim was to deprive the Tribunal of jurisdiction to hear an appeal against rejection of the human rights claim. In allowing the appeal, the Court of Appeal held that the claimant had made two claims, albeit in one appeal. They regarded it as one appeal on two grounds against one administrative decision. Miss Cronin submitted that the Court’s distinction between the asylum claim or ground and the human rights claim or ground was relevant to the approach that should be taken in this case.

Finally, Miss Cronin contended that there would be few, if any, wider consequences if the claim succeeded. That was due to the combination of the Secretary of State having accepted the further representations as a fresh asylum claim and the previous asylum appeal being irrelevant to the issue of certification because it was made under the Act of 1993.

Miss Grange, who appeared for the Secretary of State, invited the Court to attach importance to the aim and purpose of section 96(2) of the Act of 2002 which, she said, was to ensure that all claimants brought all their claims in one appeal in order to achieve finality. She drew my attention to the observation of Mitting J. in the Balamurali case dealing with the certification provision in section 73 of the Act of 1999 when he said

“The purpose of section 73 is to require the claimants to bring all claims in one appeal, and to achieve finality in the determination of that single appeal. Again, if a common law analogy is permitted, the analogy is with estoppel…..”

Taking the meaning of “ground” as comprising the factual and legal aspects of the ground, Miss Grange submitted that there must be a difference of substance between the two grounds to escape the certification provision because otherwise it would defeat the intent and purpose of the legislation to prevent repeat applications and to achieve finality. As she pointed out, there will invariably be some difference between the situation at the date of certification compared to the situation at the date of the previous appeal due to the passage of time. Some differences may be of such substance as to justify a further appeal but it would, she said, be absurd if any change, however insignificant, could preclude certification.

It was therefore contended that the issue was whether there was any difference of substance in the factual or legal aspects of the grounds. As the claimant was content to argue the case on the basis of there being no substantial difference on the facts, the question was whether there was any substantial difference between the legal issue to be determined on the fresh asylum claim compared to that determined in the human rights appeal. Miss Grange submitted that there was no difference of substance between the legal issues already determined in the human rights appeal and those that would fall to be determined if the certification were set aside.

Reliance was placed on the Court of Appeal decision in R (on the application of Bagdanavicius) v Secretary of State for the Home Department (2003) EWCA Civ 1605, as showing that there is a broad symmetry between the threshold of risk is asylum and Article 3 cases and that the concept of sufficiency of protection applies equally to both claims.

It was accepted, as was pointed out in the Bagdanavicius case, that the Article 3 test of ill treatment is broader than the asylum test in that there is no requirement to show that the motivation for persecution was due to a Refugee Convention reason, but it was pointed out that that made no difference in this case. The fear of ill treatment from Croatian extremists fell within both Conventions and the need to show a Refugee Convention reason simply imposed an additional burden on the claimant rather than increased the possibility of success.

It was also accepted that the conduct of the claimant may be relevant to an asylum claim and not to a human rights claim but, again, it was pointed out that that made no difference in this case because the conduct of the claimant was not relevant to his claim of fear from extremists. Whilst the Article 3 protection is absolute, there is no difference in assessing the risk because the test of sufficiency of protection is the same in both cases.

It was also accepted on behalf of the Secretary of State that there are differences in the outcomes and resulting status between successful asylum claimants and human rights claimants, but it was contended that that was irrelevant in circumstances where the legal test to decide if such entitlement arose was exactly the same in both cases. If the facts and legal tests are the same, it is irrelevant that the outcome is different.

It was also accepted that the legislation differentiates between asylum claims and human rights claims but it was submitted that, although there were those technical differences, it had not been shown that the legal issues would be any different in the circumstances of this case between the human rights appeal and an appeal against the refusal of the fresh asylum claim if there had been no certification.

Miss Grange stressed that the case of Zenovics was a very different type of case where only the asylum claim was certified, whereas in this case the Secretary of State had certified the fresh asylum claim and the human rights claim and the question was whether the asylum claim could be certified due to the earlier human rights appeal which raised the same issue.

Finally, Miss Grange pointed out that, in paragraph 22 of his letter of 25 June 2003, the Secretary of State also certified the fresh asylum claim on the alternative ground under section 96(2)(b), namely that the claim relied on a ground which should have been included in the claimant’s section 120 statement in relation to his human rights appeal. That certification was based on the undisputed fact that the information about the indictment of General Gotovina provided by the claimant’s brother in connection with the fresh asylum claim was public knowledge before the claimant’s “one stop” statement and long before the hearing of the human rights appeal and therefore, it was said, it should have been included in the “one stop” statement. Miss Grange submitted that, if there was something factually or legally which ought to have been put in the “one stop” statement, a claimant cannot use it at a later stage to get another right of appeal.

Miss Cronin accepted that the Secretary of State was entitled to rely on the fact that the new information about the indictment was not included in the “one stop” statement or adduced at the human rights appeal because it was in existence at the time even though the claimant did not know about it, but she submitted that section 96(2)(b) related to a ground, rather than facts, that should have been included in the “one stop” statement, and that, in any event, the claimant did not have to repeat an asylum ground in his human rights statement.

Having regard to the arguments adduced on both sides, it seems to me that I really have to choose between a technical approach or a purposive approach to the resolution of the issue in this case.

The claimant’s approach is a technical one but it is none the worse for that. There is no doubt that there are a number of differences between an asylum claim or ground and a human rights claim or ground. They were very clearly identified by Miss Cronin, and most of them were accepted by Miss Grange on behalf of the Secretary of State. If it were right to approach this issue solely on the basis that an asylum ground is a different legal creature from a human rights ground, the claimant will have made out his claim because there is no doubt that they are technically two different legal grounds. That, however, begs the question whether the word “ground” in section 96(2) should be interpreted in such a technical way which would exclude certification in circumstances where the factual and legal issues are effectively the same.

The situation in this case is complicated by the fact that the Secretary of State accepted the claimant’s further representations as a fresh asylum claim notwithstanding that the further information about the indictment of General Gotovina was available at the time of the human rights appeal. However, bearing in mind the restricted scope of the permission granted by Buxton LJ and the fact that this case was argued on the basis that there was no substantial difference on the facts between the fresh asylum claim and the human rights appeal, the issue really does boil down to whether the difference in the technical legal nature of the grounds precludes certification under section 96(2).

I am satisfied that none of the practical differences which undoubtedly exist between an asylum ground and a human rights ground have any significant relevance to the circumstances of this case, even though there will be many other cases where such differences will be of significance and would preclude certification. The two differences mentioned in the case of Bagdanavicius, namely the motivation for persecution in asylum claims and the conduct of the claimant, are not relevant in this case because the former simply imposes an additional burden on the claimant rather than giving rise to any prospect of increased success compared to the human rights appeal, whilst the latter is simply not relevant to the claimant’s fear of ill treatment from extremists, whether such fear is said to be for a Refugee Convention reason or under Article 3 of the Human Rights convention.

It seems to me that the claimant’s case is basically the same under whichever heading it is put. It is a fear of ill treatment from extremists, and the risk involved, together with consideration of the sufficiency of protection, will be essentially the same whether it is put under the Refugee Convention or under Article 3 of the Human Rights Convention.

Whilst I would accept that there are undoubtedly differences in the outcome and status between a successful asylum claimant and a successful human rights claimant, I would accept Miss Grange’s submission that those differences are irrelevant for the purposes of certification under section 96(2) if they arise out of consideration of essentially the same factual and legal issues.

I was told by Miss Cronin that recent Court of Appeal decisions have been more sympathetic to the administrative difficulties caused to the Secretary of State from repeat claims. I attach importance to the purpose of the certification provision in section 96(2) which is to prevent repeat claims being brought on the same grounds and to ensure that there is finality. In those circumstances, I consider that it is appropriate to adopt a purposive, rather than a technical, approach to the interpretation of the word “ground” in section 96(2) so that there can be certification where there is no difference in substance between the ground relied on in the claim being considered and the ground raised in the previous appeal even though one ground may technically be an asylum ground and the other may be a human rights ground. If there is for all practical purposes no difference in substance between the two grounds, certification in those circumstances would be consistent with the purpose and aim of section 96(2). For reasons which I have already mentioned, the factual and legal issues in the fresh asylum claim and the human rights appeal are to all intents and purposes the same and, in my view, it should not be possible in those circumstances to avoid certification by adopting an asylum label rather than a human rights label. If the claimant’s argument were right, the effect could be far reaching because the Secretary of State would never be able to certify an asylum claim where there had previously been a human rights appeal even if the factual and legal issues raised in both of them were virtually identical.

I am conscious of the approach taken by the Court of Appeal in the Zenovics case but that case involved a different factual situation and a different statutory provision. It may even be said that the Court adopted a purposive approach to the particular problem thrown up in the circumstances of that case. I am not persuaded that there is anything in that case which should cause me to adopt a different approach to that which I have already stated ought to be adopted in this case.

This is a case where the claimant has been through the appeal process twice already and where his latest claim does not involve any difference in substance from the issues which arose in those two previous appeals. In those circumstances, I consider that the Secretary of State was entitled to certify his fresh asylum claim under section 96(2)(a) and that the certification was lawful.

It is not therefore strictly necessary for me to deal with the alternative ground of certification under section 96(2)(b). All I need to say is that if, as is accepted, the ground includes the factual and legal aspect of the ground, then the information about the indictment of General Gotovina should have been included in the claimant’s “one stop” notice. In those circumstances, I can see no reason why the Secretary of State was not entitled to certify the fresh asylum claim under section 96(2)(b) as well.

My overall conclusion therefore is that the Secretary of State was entitled to certify the claimant’s fresh asylum claim under section 96(2)(a) and (b) and that, accordingly, this claim for judicial review must be dismissed.