West Law Report

R (SIVANESAN) v HOME SECRETARY

Posted in Asylum seekers and refugees, Westlaw Reports by mrkooenglish on June 18, 2008

Last Updated: 7:17PM BST 11/06/2008
Queen’s Bench Division (Admin) Sir George Newman May 25, 2008
Failed asylum seekers – Fresh evidence – New submissions – Sri Lanka – Secretary of State’s reliance on adjudicator’s decisions – Required degree of anxious scrutiny of further representations

FACTS

The claimant asylum seeker (S) applied for judicial review of a decision of the defendant secretary of state to refuse to treat further submissions as constituting a fresh claim. S, a Tamil of Sri Lankan nationality, had been arrested in Sri Lanka having allegedly been linked to members of the Liberation Tigers of Tamil Eelam. He was subsequently released on reporting conditions, but fled to the United Kingdom. Upon arriving in the UK he unsuccessfully claimed asylum and thereafter exhausted every avenue of appeal against the adverse decision. Some years later S was made the subject of removal directions. To counter the removal process he made further representations to the secretary of state, relying on an alleged change in the country conditions. The secretary of state, relying on the decision of the adjudicator at the hearing of S’s asylum appeal, dismissed S’s further representations as constituting a fresh claim. S submitted that the secretary of state’s decision letter failed to deal with the further representations in any depth and without the requisite degree of anxious scrutiny.

ISSUE

Whether the secretary of state’s decision letter failed to deal with the further representations in any depth and without the requisite degree of anxious scrutiny.

HELD (application granted)

The secretary of state’s decision letter was deficient in a number of respects. Primarily, it failed to focus on the fundamental issue as to whether or not there were any factors that could lead to a suspicion that S was involved, at a sufficiently high level, with the Liberation Tigers. It addressed some of the factors listed in the country guidance case, but drew no distinction between real risk factors and background factors, LP v Secretary of State for the Home Department [2007] UKAIT 76 applied and R (on the application of TR) v Secretary of State for the Home Department [2008] EWHC 747 (Admin), R v Secretary of State for the Home Department Ex p Baskaran (unreported) considered. Therefore, the adjudicator’s determination was an inadequate foundation for the exercise of the secretary of state’s requisite degree of anxious scrutiny, and so the decision letter, having failed to address the crucial factors in S’s case, could not stand as a lawful decision and S was entitled to present his case at an appeal hearing.

Roxanne Frantzis (instructed by Raja & Co) for the claimant. Rory Dunlop (instructed by Treasury Solicitor) for the defendant.

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