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IN THE SUPREME COURT OF JUDICATURE 97/1649/4

COURT OF APPEAL (CIVIL DIVISION) 98/00051/4

B e f o r e :

MAHMUT CAKABAY

Appellant

- and -

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Cakabay No2)

Respondent

AND BETWEEN

MAHMUT CAKABAY

Appellant

- and -

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

and

THE IMMIGRATION APPELLATE AUTHORITY (Cakabay No 3)

Respondents

(Handed Down Transcript of Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

- - - - - -

ANDREW NICOL QC & MARK HENDERSON (instructed by Howe & Co., London, W5 2BS) appeared on behalf of the Appellant

RICHARD PLENDER QC (instructed by Treasury Solicitor, London, SW1 9JS)

appeared on behalf of the Respondents

- - - - - -

J U D G M E N T

(As approved by the Court )

- - - - - -

©Crown Copyright

LORD JUSTICE SCHIEMANN:

This appeal raises in the context of immigration law some important questions as to the legal regime governing repeated applications by an applicant for the same relief. Where a person claims asylum, has his claim rejected by the Secretary of State and has exhausted the appellate process, but then makes a second claim for asylum which the Secretary of State does not grant, what further remedies are available to the applicant? That is the underlying issue before the Court.

THE FIRST CLAIM FOR ASYLUM

The appellant Mr Cakabay arrived in this country on 26. June 1996. He needed permission to enter (Immigration Act 1971, s.1.) He claimed asylum and asked for permission to enter on that basis. S.4 of the 1971 Act provides that the power to give or refuse leave to enter shall be exercised by Immigration Officers. However, Immigration Rule 328 provides that all asylum applications will be considered by the Secretary of State. He did so and refused the application on 30 August 1996. Immigration Rule 331 provides that in such circumstances the Immigration Officer will then resume his examination in order to determine whether or not to grant to the person seeking leave to enter leave under any other provision of the Immigration Rules. The asylum application having been refused, the Immigration Officer, on 11 September 96 refused leave to enter on two grounds

1. You have applied for asylum in the United Kingdom. The Secretary of State has decided to refuse your application for the reasons set out in the attached notice.

2. You have failed to produce to the Immigration Officer a valid national passport or other document satisfactorily establishing your identity or nationality.

S.13 of the 1971 Act enables a person who is refused leave to enter to appeal to an adjudicator. However, the Asylum and Immigration Appeals Act 1993 created a special regime in relation to claims for asylum. A claim for asylum means

“a claim made by a person that it would be contrary to the United Kingdom's obligations under the Convention [1] for him to be removed from or required to leave the United Kingdom” : s.1 of the 1993 Act.

The right to appeal to an adjudicator under s.13 of the 1971 Act was excluded [2] by the 1993 Act and there was substituted a right to appeal to a special adjudicator [3]. The presently crucial provision is in s.8(1)

“A person who is refused leave to enter ... may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the U.K.'s obligations under the Convention.”

Mr Cakabay appealed to a special adjudicator. His appeal was dismissed. The Immigration Appeal Tribunal refused leave to appeal and leave to move for Judicial Review of that decision was also refused. In the present proceedings Mr Cakabay can not and does not raise any complaint as to the disposal of his first claim for asylum.

THE SECOND CLAIM FOR ASYLUM

Three days after leave to move for Judicial Review in relation to the first claim was refused, Mr Cakabay's solicitors made further representations, once more claiming asylum on his behalf. Faced with such further representations, the task of the Secretary of State is set out in IR 346.

“Where an asylum applicant has previously been refused asylum .......... 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 (Footnote4) will be satisfied. In considering whether to treat the representations as a fresh claim, the Secretary of State will disregard any material which:

(1) is not significant; or

(2) is not credible; or

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

The Secretary of State decided not to treat the representations as a fresh claim to asylum. It is that decision ("the categorisation decision") which gave rise to two sets of Judicial Review proceedings before Lightman J (“Cakabay 2” and “Cakabay 3”) against whose decisions Mr Cakabay appeals.

For the purpose of exposition, although ultimately of no significance, it is helpful to explain what those two proceedings were. Cakabay 3 arose out of an attempt by Mr Cakabay to appeal the categorisation decision. It was an application by the Secretary of State for an order preventing the Immigration Appellate Authority from entertaining the appeal against the categorisation decision. It raised the first question ("the Appeal Question") before the Court : was the judge right to hold that a categorisation decision could not be challenged by way of appeal.

Cakabay 2 was an application by Mr Cakabay for an order quashing the categorisation decision. It raises the second question ("the Precedent Fact Question") before the Court : was the judge right to hold that a categorisation decision can only be challenged on what are customarily referred to as Wednesbury grounds, or can it also be challenged on the basis that the Court should itself decide as a matter of precedent fact whether or not the categorisation decision was correct.

THE NEED FOR CATEGORISATION

Before turning to consider these two questions it is helpful to indicate why the need for categorisation arises. What follows is not substantially in dispute between the parties.

The background to the problem is the desire of the United Kingdom to abide by its obligations under the Geneva Convention.

The Geneva Convention provides in Article 33

“1. No contracting state shall expel or return (“Refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom will be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

By Article 1A of the Convention as amended by the Protocol a refugee is any person who:

“owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country .........”

It is manifest that if a state acts in breach of its obligation the consequences to the individual can be disastrous. Parliament has therefore provided in s. 6 of the 1993 Act that

"During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."

Moreover Parliament has provided that the claimant may not be removed from or required to leave the United Kingdom whilst he is pursuing the appellate process [5] .

The Statute makes no express provision as to what is to be done in the case of repeated claims for asylum by the same person. The second claim may be identical to the first ("a repetitious claim") or may be different ("a fresh claim"). It is common ground that a fresh claim attracts all the substantive and procedural consequences of an initial claim whereas a repetitious claim does not.

In the case of a repetitious claim no more is required to be done : the first decision has ensured that the United Kingdom has complied with its obligations under the Convention. S.6 of the 1993 Act creates no inhibition on the claimant's removal: the Secretary of State has on the occasion of his decision on the first claim decided the repetitious claim. So far as the decision on the claimant's repetitious application for leave to enter is concerned, the claimant will be told that leave has already been refused and that there is no need for any new decision.

In the case of a fresh claim the claimant is protected by section 6 and the Secretary of State must make a decision on his fresh claim. If the Secretary of State decides to grant asylum and the person has not yet been given leave to enter, the Immigration Officer will grant limited leave to enter (Footnote [6]). By contrast, if the Secretary of State decides not to grant asylum, the Immigration Officer will (Footnote [7]) resume his examination to determine whether or not to grant the application for leave to enter and then determine it. Assuming no factual change in relation to non-asylum matters, the Immigration Officer will refuse it and the applicant will have his rights of appeal and will be protected during the appellate process.

The difficulty lies in the cases where the claimant asserts that he has made a fresh claim whereas the Secretary of State categorises it as repetitious. By whom and by what test is this dispute as to categorisation to be resolved? Mr Andrew Nicol QC, who appears for Mr Cakabay, submits that this categorisation dispute is to be resolved by the Immigration Appellate Authority. It is to that submission, which was rejected by the Judge, that I now turn.

THE APPEAL QUESTION

The judge in substance decided that

1. A Special Adjudicator faced with a notice of appeal has jurisdiction to determine whether he has jurisdiction to entertain the appeal.

2. The Special Adjudicator has under s.8 of the 1993 Act jurisdiction to entertain appeals against a refusal by an Immigration Officer of leave to enter but he does not have jurisdiction to entertain an appeal against any decision of the Secretary of State to reject a claim for asylum

3. Whether or not the Special Adjudicator has jurisdiction will in practice depend on whether or no the Secretary of State has decided that there is before the Secretary of State a fresh claim for asylum. If the Secretary of State has so decided and has determined that claim and thereafter an Immigration Officer has decided on the application for leave to enter to refuse that leave then the Special Adjudicator has jurisdiction to hear any appeal against that refusal. If the Secretary of State has decided that the claim is repetitious and there is no new decision by the Immigration Officer on the application for leave to enter then the Special Adjudicator has no jurisdiction to consider the matter further.

4. The appropriate remedy for an applicant faced with an adverse categorisation decision was an application for Judicial Review of the legality of the Secretary of State's decision and not an appeal on the merits to a Special Adjudicator.

Mr Nicol contends that to hold that before there can be an appeal under s.8 of the 1993 Act there must be a decision by an Immigration Officer under s.4(1) of the 1971 Act to refuse leave to enter is to confound form with substance. He submits that in cases such as the present, where asylum is the only issue, the effective decision taker is the Secretary of State and that categorisation by the Secretary of State of a claim as repetitious rather than fresh is in substance a refusal of leave to enter. Mr Nicol submits beguilingly that the effect of the judgment under appeal is that

"even though in substance and in truth there has been a fresh application for asylum and even though in substance and in truth the Secretary of State has freshly refused leave to enter, the asylum claimant is denied a right of appeal because of the way in which the Secretary of State characterises the representations and/or his own response to them".

I accept that the substantive effect of categorising the claim as repetitious is that the claimant is left in the position that he has no leave to enter. That was the position in which he found himself as a result of the decision on his first claim and the negative results of the appellate and Judicial Review processes in relation to that first claim. This fact however seems to me of no help one way or the other in deciding whether Parliament has given a right of appeal on the merits to one who is disadvantaged by the Secretary of State's categorisation decision.

For my part I do not find the reference to a claim as being “in substance and in truth” a fresh claim helpful. Whether a claim is a fresh claim is something about which, in some cases at any rate, there will be legitimate room for disagreement. Someone has to make a final judgment as to whether in truth a fresh claim has been made. That judgment must serve as the legal process by which the truth is revealed. The question is : whose judgment is this to be?.

Some initial matters are I think common ground and seem to me beyond dispute:-

1. The initial categorisation decision must be made by the Secretary of State.

2. If he makes a mistake of law in coming to that decision that can be corrected by the Courts by way of Judicial Review.

3. Unless Parliament has given a right of appeal against the categorisation decision to the Immigration Appellate Authority there is no right of appeal. What is at issue is whether Parliament has given any such right of appeal.

4. It has not done so expressly. So the question becomes whether a Parliamentary intention to create a right of appeal can be implied.

5. The express power to appeal in s.8(1) of the 1993 Act is against a refusal of leave to enter.

6. Such a refusal can only in form be made by an Immigration Officer acting under powers conferred by s.4(1) of the 1971 Act.

7. However Schedule 2 paragraph 1(3) of that Act enables the Secretary of State to give an Immigration Officer directions as to how he should act.

Mr Nicol submitted that the effect of the judgment below was to insert additional words into paragraph 2 of Schedule 2 of the 1993 Act and that the Court should be slow to do this, particularly in a context in which the consequences of an adverse decision could be that a person is exposed to persecution. That paragraph provides

“A person may not bring an appeal on any of the grounds mentioned in subsections (1) to (4) of section 8 of this Act unless, before the time of the refusal, variation, decision or directions (as the case may be), he has made a claim for asylum.”

He also submitted that the effect of the judgment below was to insert the words "what the Secretary of State decides is" before the last 4 words of the paragraph. He pointed out that the judge accepted that this was the effect of his decision although the judge went on to say that these words only made explicit what was implicit, in particular by reading that paragraph with section 8. It is clear that the making of a fresh claim is a condition precedent to an appeal. Someone has to decide whether a new claim is fresh. That someone, initially, is the Secretary of State. Nevertheless I do not see how this paragraph illuminates the question whether or not Parliament has conferred a right of appeal on the merits against a characterisation decision by the Secretary of State. That paragraph in the Schedule seems to me irrelevant to the point which we have to decide.

Mr Nicol submitted that the effect of the judge's decision was to give the respondent to a putative appeal the power to deny the notional appellant the right to appeal and that Parliament can not have intended this. Again, I find this way of presenting the problem unhelpful when the very question at issue is whether Parliament has conferred a right of appeal to someone affected by a decision. It is common ground that where the claim is (to adopt Mr Nicol's approach) in fact and in truth repetitive there is no right of appeal. It follows that, in such a case, where the Secretary of State decides that the claim is repetitive there is no right of appeal. Yet there too Mr Nicol could argue that the respondent to a putative appeal has denied to the notional appellant the right to appeal : for had the Secretary of State decided that the claim was not repetitive but was fresh there would have been a right of appeal. This submission does not in my judgment withstand analysis. Mr Nicol in support of it drew our attention to two decisions of the Immigration Appeal Tribunal [8]. These he accepted were decided in different contexts and I hope I will be forgiven for not lengthening this judgment by considering them in detail. They add no relevant argument which is not considered elsewhere in this judgment.

The Supreme Court case law on the appeal question is divided and not binding on this Court. Mr Nicol relied on R v Home Secretary, ex p. Manvinder Singh [1996] Imm AR 41 where Carnwath J. decided that, on an appeal pursuant to s.8(4), [9] a Special Adjudicator was entitled to examine on its merits the correctness of an earlier categorisation decision by the Secretary of State; he held however that, since any adjudicator on the facts of that particular case would be bound to find that the Secretary of State had been right to categorise the claim as repetitious, he would refuse the applicant any relief. That decision was unsuccessfully appealed to this court (Stuart-Smith, Rose LJJ and Sir John Balcombe) on 8 December 1995 (unreported). However, the question whether there was an appeal on the merits of the categorisation decision was expressly left open. Mr Richard Plender QC, who appears for the Home Secretary, relied on R v Home Secretary ex p, Ravichandran (No.2) [1996] Imm AR 418 in which Dyson J held, on an appeal pursuant to s.8(1) of the 1993 Act that the categorisation decision could not be appealed on the merits. Mr Plender also relied on R v Home Secretary, ex p. Onibiyo [1996] QB 768 in this Court. In the latter case, which was an appeal pursuant to s.8(3) [10] of the 1993 Act, Sir Thomas Bingham M.R. recorded the following at page 784 without further comment

“The problematical situation is that in which, as here, the Secretary of State does not recognise a claim as a fresh “Claim for asylum” and so declines to make any decision or to take or omit to take any action which would trigger a right of appeal under Section 8. Neither party suggested that the asylum-seeker was without redress in this situation, and both accepted that redress could be obtained only by resort to the Court.”

Both parties have also referred us to R v Home Secretary ex p. Boybeyi (Unreported. CO/1334/96) a decision of Sedley J delivered on 24 January 1997. That was a case concerned with a challenge to the Secretary of State's categorisation decision and is more relevant to the precedent fact question which I shall consider later in this judgment. However, Mr Plender points out that at page 18 of the transcript Sedley J is reported as saying that the Secretary of State remains in law the single arbiter of whether material submitted to him by a formerly unsuccessful asylum-seeker amounts to a fresh claim for asylum. It will be apparent from the foregoing that the case law gives no definitive guidance as to the answer to the appeal question.

Mr Plender submitted that the Court should be slow to hold that there was an appeal on the merits against a categorisation decision, since the result of such a holding would be that there would be innumerable further possibilities for delay on the part of those who make unjustified claims for asylum.

Mr Nicol riposted first with a comment of Carnwath J's in Manvinder Singh at p.54 :

“the fact that there may be abuses of the system does not seem to me to be a reason for denying an appeal route in cases where there are matters of substance raised which arguably provide the basis for a new application."

One difficulty as it seems to me with relying on that comment is that it is not in dispute that where there are matters of substance raised which arguably provide the basis for a new application there is a right of appeal if the decision is negative. The problem which has to be addressed, and which that comment does not address, is whose is the final decision on the question whether there are such matters of substance. In this respect Mr Plender submits that in a case where Parliament has not expressly provided an appeal route, the existence of possibilities of abuse militates against implying one.

Mr Nicol's second riposte is that there are various ways in which abusive claims can be swiftly dealt with. He referred in this context to the Asylum Appeals (Procedure) Rules 1996 Rule 23(4)(c)(i), Rule 34, Rule 35(1)(c) and Rule 36, to the possibility of the Secretary of State certifying a claim as vexatious ¹¹ and to the possibility, which he asserted existed, of the High Court interfering by injunction to prevent abuse. Some of this was contentious but it is unnecessary for me to resolve those matters which are not agreed. What is clear is that up to a point, but only up to a point, a vexatious claimant can be hurried along.

I accept that a categorisation decision has potentially severe consequences and that, in such a context, arguments based on the possibilities of abuse should not weigh heavily in matters of construction.

Nevertheless, like Dyson and Lightman JJ, I would hold that Parliament has not provided for an appeal on the merits against a categorisation decision. It could have done, but it was also perfectly reasonable for Parliament to have taken the view that to allow a challenge to the legality of the Secretary of State's categorisation decision was sufficient and that there was no need to create also the possibility of an appeal on the merits of that decision.

THE PRECEDENT FACT QUESTION

While there is no right of appeal to a special adjudicator against a categorisation decision, the legality of that decision by the Secretary of State is subject to control by Judicial Review. What needs now to be considered is what should be the approach of the Court on such a Judicial Review. There is no decision binding on this court which gives a definitive answer and we are invited to provide one.

The question which the Secretary of State asked himself was formulated by reference to Immigration Rule 346 and amounted to this “ Is the claim advanced in the representations sufficiently different from the earlier claim that there is a realistic prospect that the conditions for entitlement to asylum will be satisfied?”. It is common ground that Judicial Review lies in respect of a categorisation decision but it is accepted by Mr Nicol that, if the appropriate test for the court to apply is the so called Wednesbury test, the Secretary of State’s decision does not fall to be quashed, that is because he asked himself the right question, he answered it in a way which was not perverse and he did not misunderstand the law.

Mr Nicol however submits that, in a case such as the present, the control of legality exercised by the High Court is not limited to Wednesbury considerations. He submits that the High Court should have asked itself the very question which the Secretary of State asked himself and, if it differed from the answer arrived at by the Secretary of State, should have quashed his decision. He put the matter this way:

1. The 1993 Act conferred upon those who made a claim for asylum two rights of fundamental importance, each conditional upon having made that claim:

(a) A claimant enjoys immunity from expulsion by the Secretary of State until the Secretary of State has given the claimant notice of his decision upon the claim for asylum [Section 6]

(b) Provided he has made a claim for asylum, the claimant enjoys an automatic right of appeal against expulsion by the Secretary of State on the ground that such expulsion would violate the Geneva Convention [Section 8 and Schedule 2 paragraph 2] and the Secretary of State is prohibited from expelling the claimant until such appeal is determined [Schedule 2 paragraph 9].

2. The question which arises for determination as a matter of fact is whether or no a fresh claim has been made.

3. That question was similar in type to the question which the House of Lords in Khawaja v Secretary of State [1984] AC 74 had held to be one which required determination as a matter of precedent fact, namely, whether a person was an illegal entrant.

4. The wording of paragraph 2 of Schedule 2 of the 1993 Act pointed to the same conclusion since the definition of a claim in s.1 of that Act contains no reference to the opinion of the Secretary of State

5. It required a clear expression of Parliamentary intention for the Court to conclude that

a) the Secretary of State, who is himself party to a putative appeal should himself have the power to determine (subject only to a Wednesbury challenge) whether his putative opponent enjoys that right of appeal

b) the Secretary of State’s statutory duty to refrain from removing any person who has made a claim for asylum pending notice of a decision thereon (section 6) is dependent upon the Secretary of State’s opinion of whether a condition precedent to the existence of that duty itself exists.

Mr Nicol adopted as part of his argument the following obiter passage in the judgment of Sedley J in R v SSHD ex parte Boybeyi (24 January 1997 Unreported) at page 13 said:

“Unless the question whether a person has made a claim for asylum is a question of precedent fact, the effect is to make [Section 6 of the 1993 Act] read:

“During the period beginning when a person in the opinion of the Secretary of State makes a claim for asylum ........................”

This is very much in point in a case like the present, since if the Secretary of State is entitled to make the definitive judgment as to whether the new material creates a claim for asylum which is not blocked by Rule 346, his decision that there is no such claim means that there is no statutory protection against removal. I recognise that fresh application cases are not uncommon and that to treat the initial question as one of precedent fact may be to create more work for this court; but I bear in mind too what Lord Bridge said in Leech v Governor of Parkhurst Prison [1988] AC 533, 566:

“In a matter of jurisdiction it cannot be right to draw lines on a purely defensive basis ................. Historically the development of law in accordance with coherent and consistent principles has all too often been impeded, in diverse areas of the law besides that of judicial review, by the court’s fear that unless arbitrary boundaries are drawn it will be inundated by a flood of unmeritorious claims.”

I therefore record my respectful concern on grounds of both practice and principle at the present state of authority on this topic. While there can be no doubt that the Secretary of State in every such case must initially form his own view, the character of the court’s secondary judgment remains a question of importance.”

Mr Plender accepts the first two of these submissions but invites us to reject the rest. He submitted that the question whether or no a fresh claim had been made was not a “hard- edged” question but rather one which was similar to the question “is X a refugee?” which the House of Lords in Bugdaycay v Home Secretary [1987] AC 514 had held should not be treated as one of precedent fact. He drew our attention to the following passage from the speech of Lord Bridge of Harwich, at page 522, with whose reasoning the remainder of their Lordships concurred.

“The primary submission made on behalf of the first three appellants is that the Immigration Rules prohibit their removal ....................... until the courts have adjudicated upon and rejected their claim to be refugees from those countries. The argument proceeds by stages. Each claims to be a refugee from the country of his nationality. To return him to that country, therefore, would contravene Article 33.1 of the Convention. [The Immigration Rules] prohibit removal contrary to the provisions of the Convention. It follows, so it is said, that the Secretary of State cannot give himself power to make a decision leading to a person’s removal contrary to the rules by finding as a fact that he is not a refugee, if in truth he is. The conclusion, it is submitted, is that, if the Secretary of State has purported to make such a decision, the Court, on an application for Judicial Review, is not confined to considering whether there was evidence to support the decision of the Secretary of State, but must examine the evidence and make its own decision. Only if the court is satisfied on a balance of probabilities that the person claiming asylum is not a refugee, can the decision to remove him to his country of origin be affirmed.

This line of reasoning is said to be supported by analogy by the decision in Khawaja that when directions given pursuant to paragraph 9 of Schedule 2 to the Act for the removal of an illegal immigrant are challenged on an application for Judicial Review, it is for the Immigration Officer or the Secretary of State, as the case may be, to establish the fact of illegal entry.

The reason why this argument cannot be sustained is that all questions of fact on which the discretionary decision whether to grant or withhold leave to enter or remain depends must necessarily be determined by the Immigration Officer or the Secretary of State in the exercise of the discretion which is exclusively conferred upon them by Section 4(1) of the Act. The question whether an applicant for leave to enter or remain is or is not a refugee is only one, even if a particularly important one required by paragraph 73 of [The Immigration Rules] to be referred to the Home Office, of a multiplicity of questions which Immigration Officers and officials of the Home Office acting for the Secretary of State must daily determine in dealing with applications for leave to enter or remain in accordance with the rules, as, for example, whether an applicant is a bona fide visitor, student, businessman, dependent etc.. Determination of such questions is only open to challenge in the courts on well known Wednesbury principles. There is no ground for treating the question raised by a claim to refugee status as an exception to this rule. For the reasons explained at length in the speeches in Khawaja’s case the Court’s fundamentally different approach to an order for removal on the ground of illegal entry is dictated by the terms of the Statute itself, since the power to direct removal under paragraph 9 of Schedule 2 is only available in the case of a person who is in fact an “illegal entrant”.”

Mr Plender relied on the following passage in the judgment of Sir Thomas Bingham M.R. in R v Secretary of State, ex p. Onibiyo [1996] QB 768 at 784

“The applicant argued that whether or not a fresh “claim for asylum” had been made was a matter of precedent fact to be decided, in case of dispute, by the court. The Secretary of State argued that the question was one for him and his decision, while not immune from challenge, could be challenged only on grounds of irrationality. The cases .......... contain tentative expressions of opinion both ways. .................. I do not regard the answer to the question as determinative of this appeal. Since the issue is one of importance, and also in my opinion of considerable difficulty, I accordingly proffer a tentative answer only.

The role of the court in the immigration field varies, depending on the legislative and administrative context. Where an exercise of administrative power is dependent on the establishment of an objective precedent fact the court will, if called upon to do so in case of dispute, itself rule whether such fact is established to the requisite standard. Thus, for example, where power to detain and remove is dependent on a finding that the detainee is an illegal entrant, one who has entered clandestinely or by fraud and deceit, the court will itself rule whether the evidence is such as to justify that finding: R v SSHD ex parte Khawaja [1984] AC 74. By contrast, the decision whether an asylum seeker is a refugee is a question to be determined by the Secretary of State and the immigration appellate authorities, whose decisions are susceptible to challenge only on Wednesbury principles: R v SSHD ex parte Bugdaycay [1987] AC 514. I am of opinion, although with some misgivings, that the judgment whether a fresh “claim for asylum” has been made should be assimilated with the latter, and not the former class of judgment. If the test propounded in (1) above (Footnote [11]) is correct, the answer to the question whether or not a fresh “claim for asylum” has been made will depend not on the finding of any objective fact, nor even on a literal comparison of the earlier and the later claim, but on an exercise of judgment, and this is a field in which the initial judgments are very clearly entrusted to the Secretary of State. In giving effect, for example, to rule 346 of the ...............Immigration Rules (Footnote [12]), it must be for the Secretary of State and not for the Court to rule whether the applicant can demonstrate a relevant and substantial change in circumstances since his refusal of an earlier application. In a case such as the present the judgment is not very different from that which the Secretary of State may make under Section 21 of the Act of 1971.

I would accordingly incline to accept the Secretary of State’s argument on this point, while observing that decisions reached by him are susceptible to challenge on any Wednesbury ground, of which irrationality is only one.............................”

Mr Plender accepted that there was no decision binding on this court but he pointed out that the correctness of this reasoning had been accepted explicitly or implicitly, albeit in the case of Sedley J. without enthusiasm, by a number of judges at first instance and this Court (Footnote [13]).

Mr Plender submitted that the doctrine of review on a precedent fact basis had evolved in the context of the Court’s power to control a public authority’s or inferior court’s jurisdiction and that the present case was not concerned with such a context, it being common ground that the Secretary of State had jurisdiction to consider whether or no a fresh claim had been made. He submitted that, if the Secretary of State errs in determining that fresh representations do not constitute a fresh application for asylum, he makes an error which is no different in principle from an error in applying Immigration Rules 328-345.

While it is historically true that much of our administrative law has developed in cases where the judges have sought to distinguish between errors within the jurisdiction and errors outside it, I would not wish to base this judgment on any such concept. I share the view expressed by Professor Craig in chapter 10 of the third edition of his “Administrative Law” and Sir John Laws in the fourth chapter of the second edition of “Judicial Review” (Eds. Supperstone and Goudie) that there are significant problems with any such approach. As Professor Craig puts it at page 350

“The critical question, the answer to which underlies any statement concerning jurisdictional limits, is whose relative opinion on which matters should be held to be authoritative ......................... The answer to this decisive question resides not in a logic which compels, for example, all questions of law always to be for the courts or the tribunals. Such logic is flawed. A response must ultimately be based upon a value judgment, the precise content of which will not necessarily always be the same”.

I recognise the force of the point that, in deciding whether or not a claim for asylum is a fresh claim, we are dealing with a question the answer to which can have the gravest consequences for life and limb of the applicant. It is common ground that

“The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put an applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”(Footnote13)

I note however that the House of Lords held that this “most anxious scrutiny” can take place in the context of a Judicial Review limited to Wednesbury considerations.

Mr Bugdaycay was an illegal entrant. He had no right of appeal from within this country. Directions for his removal were given under paragraph 9 of Schedule 2 of the 1971 Act. He claimed to be a refugee. The truth of this claim was the underlying question to be determined. His claim was rejected by the Secretary of State. His contention that the court must determine as a matter of precedent fact whether or no he was a refugee was rejected by the House of Lords. The underlying question in the present case for the Secretary of State was also whether the appellant was a refugee.

The procedure set out in Immigration Rule 334 provides that this underlying question is to be determined by starting with the assumption that the first decision as to his refugee status was correct and then going on to consider whether, disregarding material which is insignificant or incredible or which was available to the applicant at the time of the determination of his first claim, there is a realistic prospect that the applicant will be found to be a refugee. This process involves making a judgment as to the significance and credibility of the new material. This judgment is no different from the judgment which the Secretary of State had to make in Bugdaycay in determining whether or no Bugdaycay was a refugee. It seems to me that Bugdaycay compels this court to come to the conclusion that the correctness of the Secretary of State’s judgment can not be treated as a matter of precedent fact to be determined by the court.

Mr Nicol submitted that he was, in the words of Immigration Rule 346, merely asking the court to treat as a question of precedent fact whether “there was a realistic prospect” that a Special Adjudicator would hold that the claim to be a refugee was justified and that this was to ask the court to do no more than it regularly does when deciding whether or not a contention by one side or another is arguable. He submitted, in effect, that the question of precedent fact was whether something was arguable rather than whether it was correct. Attractively as he put it, I am not persuaded that this submission is correct. If, as was held in Bugdaycay, the Court is not entitled to treat as a question of precedent fact whether the Secretary of State was right to reject a contention that someone was a refugee, it seems to me to follow that the Court is equally not entitled to treat as a question of precedent fact whether the Secretary of State was right to reject a contention that it was arguable that someone was a refugee.

In those circumstances it is unnecessary to express a view as to the correctness of the Secretary of State’s decision. I say no more than that in my judgment Mr Nicol rightly conceded that the Secretary of State’s decision was not perverse and that I am not persuaded that it was wrong.

I would therefore agree with the views expressed by Sir Thomas Bingham MR in Onibiyo and dismiss both appeals.

LORD JUSTICE POTTER: For the reasons given in the judgments of Peter Gibson L.J. and Schiemann L.J. I agree that the appeal should be dismissed.

LORD JUSTICE PETER GIBSON: I agree that these appeals should be dismissed. But in deference to the lucid arguments of Mr. Nicol Q.C. for Mr. Cakabay I shall express shortly in my own words my reasons for reaching that conclusion.

As is common knowledge, the great majority of applications for asylum in the U.K. do not succeed. But we have been told by Mr. Plender Q.C. for the Secretary of State that in a substantial number of cases applicants do not rest content with the refusal of their asylum claims and the exhaustion of their rights of appeal but make further representations and provide further material to the Secretary of State with a view to obtaining a favourable decision from him. Given that an asylum-seeker is entitled to remain in the U.K. not only between the time when a claim is made and the time when the Secretary of State gives the applicant notice of his decision but also whilst an appeal is being pursued, that is hardly surprising: there are obvious advantages to an asylum-seeker in attempting to make a further claim. The primary legislation does not expressly state what is to happen when the rejection of an asylum claim is followed by further representations to the Secretary of State. It is clear from para. 2 of Sch. 2 to the Asylum and Immigration Appeals Act 1993 that for the applicant to have a right of appeal under s.8 to a special adjudicator, the applicant must have made a claim for asylum. It is also clear that under the Immigration Rules it is for the Secretary of State to consider and determine such a claim and Rule 346 indicates what criteria the Secretary of State must apply in determining whether representations made following a prior refusal of asylum should be treated as a fresh application for asylum. I do not doubt that there are cases where an asylum-seeker whose claim has been rejected will be able to make representations based on significant and credible material not available at the time of his earlier application. Equally I do not doubt that there are cases where such applications will not be so based. The determination of the question whether the representations amount to a fresh claim requires both a careful examination and comparison of the circumstances revealed by the original claim and those revealed by the representations and the exercise of judgment.

It is not in dispute that in the first place it is for the Secretary of State, to whom the representations are directed, to determine whether the representations amount to a fresh claim. The first question raised in these appeals is whether any appeal under s.8(1) lies from a determination adverse to the asylum-seeker that there has been no fresh claim. That depends on the existence of a claim for asylum to satisfy para. 2 of Sch.2. If the representations amount to no more than the same claim as that which has already failed, that condition would not be satisfied. Nor would it be satisfied if the criteria laid down in Rule 346 are not met. I recognise the force of Mr. Nicol's principled objection to construing the statutory scheme in a way which leaves the Secretary of State, who would himself be a party to any appeal which may lie in respect of his decision, with the power to make an unappealable determination that the representations do not amount to a fresh claim. As Mr. Nicol pointed out and as Lightman J. recognised, it is trite law that tribunals and courts with limited jurisdiction do have collateral jurisdiction to determine whether in any particular case they have jurisdiction to deal with applications before them. It cannot be said that the task of determining whether the representations satisfied the Rule 346 criteria was one which a special adjudicator was unfitted to perform.

Nevertheless at the end of the day I find myself unable to accept Mr. Nicol's submissions. Like the judge, I regard it as significant that the only right of appeal is that conferred by s.8, the wording of which does not encompass the determination by the Secretary of State that there has been no fresh claim for asylum. I do not accept Mr. Nicol's contention that this is to let form prevail over substance. The power to give or refuse leave to enter is given by s.4(1) Immigration Act 1971 to immigration officers (in contrast to the power to give or vary leave to remain which is exercisable by the Secretary of State). Whilst I accept that the Secretary of State has power under para. 1(3) of Sch. 2 to the 1971 Act to give an immigration officer directions as to how he should act, and that on the original claim to asylum the refusal of asylum by the Secretary of State is in the absence of special circumstances likely to lead to the refusal by the immigration officer of leave to enter, I do not accept that the determination by the Secretary of State that there has been no fresh application for asylum is in substance the refusal by the immigration officer of leave to enter. As the judge said, Parliament could have made special provision conferring on an applicant the like right of appeal against the decision not to treat further representations as a fresh application as against the decisions specified in section 8, but it did not.

Further there are sound policy reasons why Parliament would have wanted the determination of the Secretary of State not to be subject to the same appeal process as a refusal of leave to enter. The scope for abuse of that process by desperate or unscrupulous asylum-seekers is obvious, and Mr. Nicol has not persuaded me that this point is satisfactorily answered by pointing to the powers in the special adjudicator to determine a preliminary issue or to determine an appeal summarily without a hearing or to the power in the Secretary of State to certify a claim as frivolous or vexatious, or to invoke the jurisdiction of the Divisional Court to obtain an injunction. To have recourse to such procedures would be bound to have an adverse effect on resources already overstretched in dealing with immigration and asylum cases. Parliament would have known that the decision of the Secretary of State was subject to challenge by way of judicial review.

Accordingly, consistently with what this court in Onibiyo v Secretary of State for the Home Dept. [1996] QB 768 assumed to be correct and in agreement with Dyson J. in R v Secretary of State for the Home Dept., ex p. Ravichandran (No.2) [1996] Imm. A.R. 418 and with the judge, I would hold that no appeal lies under s.8(1) of the 1993 Act from the determination of the Secretary of State that fresh representations do not amount to a claim for asylum.

The second and closely related question which arises is whether the existence of a fresh claim for asylum is a question of precedent fact to be decided, in case of dispute, by the court, or whether the determination of the Secretary of State is subject only to review by the court on Wednesbury grounds. Again I recognise the strength of Mr. Nicol's arguments that the former is the correct position in law, supported as those arguments are by Sedley J.'s thoughtful comments in R v Secretary of State for the Home Department, ex p. Boybeyi (24 January 1997, unreported). Sir Thomas Bingham M.R. in Onibiyo recognised the question to be of considerable difficulty, and only gave a tentative answer. Nevertheless the reasoning of the Master of the Rolls and the distinction which he drew between a case like R v Secretary of State for the Home Department, ex p. Khawaja [1984] AC 74, on which Mr. Nicol relied and which depended on a finding of objective precedent fact, viz. that the applicant was an illegal entrant, and a case like R v Secretary of State for the Home Department, ex p. Bugdaycay [1987] AC 514, which depended on an exercise of judgment, viz. to determine whether the applicant was a refugee, seem to me sound. That expression of opinion by the Master of the Rolls in Onibiyo has been followed repeatedly since and whilst I accept that it would be open to this court to reach a different conclusion, I can see no sufficient ground to do so.

I have been assisted by the analysis of Dyson J. in Ravichandran (No.2) . He said (at p.429):

"The question of whether a person is an illegal entrant does not involve value judgments, pursuing enquiries abroad or consulting organisations as to the state of affairs in another country. It involves a pure question of fact .... On the other hand, the question whether a person is a refugee is not a pure question of fact .... [I]t is clear that an application of what the Master of the Rolls in ex parte Onibiyo described as the "acid test" involves an exercise which is very different from making findings of pure fact. Determining whether any claim for asylum is made out involves deciding whether the claimant is a refugee. As ex parte Bugdaycay makes clear such a decision, if challengeable in the courts, can only be impugned on Wednesbury grounds. Where a later claim is made, the Secretary of State is required to compare it with the earlier claim, and form a view as to whether it is sufficiently different from it that a special adjudicator might reasonably take a favourable view of the later claim, despite the rejection of the earlier one. The Secretary of State is required, (i) to form a view of the merits of the later claim, excluding material on which the claimant could reasonably have been expected to rely in support of the earlier one, and (ii) compare the later claim with the earlier one. The assessment of the merits of the later claim involves the same kind of fact-finding and judgment as the assessment of the merits of the earlier claim. The process of comparison of the two also involves an exercise of judgment, including a decision on what may be a difficult question, namely whether the new claim is sufficiently different from the earlier one to admit of a realistic prospect that the later claim could succeed."

Accordingly he held that the question whether a fresh claim had been made was not one of precedent fact.

It seems to me that this case falls closer to Bugdaycay than to Khawaja, and that accordingly the determination of the Secretary of State is only capable of being impugned on Wednesbury grounds. It is not in dispute that on this basis that determination cannot be challenged on the facts of this case.

In the light of that conclusion it is unnecessary to consider whether as a question of precedent fact the representations made by Mr. Cakabay amounted to a fresh claim for asylum.

For these as well as the reasons given by Schiemann L.J. I too would dismiss these appeals.

Order: Appeals dismissed with costs; order against the Legal Aid Board under Section 18 of the Legal Aid Act 1988 with the appellant's contribution assessed as nil; legal aid taxation of the appellant's costs; appellant's application for leave to appeal to the House of Lords refused. ( This order does not form part of the approved judgment )