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

Introduction

1. The applicant challenges as Wednesbury unreasonable the decisions made by the respondent on 17 July and 25 August 2012 and 21 June 2013 refusing to treat the applicant’s submissions as a fresh claim within the meaning of paragraph 353 of the Immigration Rules.

2. The applicant is a citizen of Algeria who was born on 22 April 1984. He arrived in the United Kingdom on 8 September 2001 and applied for asylum about ten days later. His asylum application was refused and his appeal before Immigration Judge M.A. Khan was dismissed in 19 September 2002. An application was made for permission to apply to the Upper Tribunal for reconsideration to the Tribunal. That was refused on 4 November 2002.

3. On 25 November 2002 a letter was sent to the applicant notifying him that his asylum claim had been finally determined and that he no longer qualified for financial support under s. 95 of the Immigration and Asylum Act 1999 . Temporary support was to be provided until 30 November 2002 and he would be permitted to remain in his accommodation until 5 December 2002. The letter continued : “You must now leave the United Kingdom. Help and advice on returning home can be obtained from the Immigration Office dealing with this case, or the immigration service… alternatively help and advice for asylum seekers and those whose asylum claim has been refused who wish to return home voluntarily can be obtained from the International Organisation for Migration.” The letter of 27 November 2002

4. It is not clear whether receipt of this letter prompted the applicant's representative to write a letter dated 27 November 2002 which said: “We wish to make a fresh application on behalf of our client and hereby apply on his behalf to be granted leave to remain on an asylum basis. The appellant has a well-founded fear of persecution in Algeria and suffered a great deal of persecution in Algeria before fleeing the country for the safety of his life.”

5. Given that the fact that the applicant's asylum claim had been finally determined a few days before when his application to appeal against the determination of Judge Khan had been refused and his appeal rights exhausted, there could be nothing within this letter that amounted to a fresh claim. No suggestion was made that there was to be a further human rights claim but, insofar as it dealt with circumstances that post-dated a decision made a few days before, there could not be the remotest prospect of a fresh claim succeeding. It is, therefore, difficult to understand how in these proceedings so much attention has been paid to a letter which carries so little weight and has so little significance. It was not a fresh claim. However, on that scant foundation, it was said that the decision made on 17 July 2012 was a response to it following some 9 ½ years later. By this device it was sought to argue that there had been a delay of such scandalous proportion that the applicant should benefit from the weight of judicial authority directed against the Secretary of State when an appellant or applicant has been the victim of inexcusable delay. However, as Judge Jordan said when he granted an adjournment to pursue the application for judicial review, the letter of 27 November 2002 (“the 2002 letter”) was in reality a ‘ non-letter ’ and provided no basis for enhancing the applicant's claim under Article 8.

6. That does not, of course, mean that the passage of time which has occurred since November 2002 and the relevant decisions should not be examined. The fact that over 10 years has elapsed since the applicant’s rights under the Refugee Convention were determined (at which point the applicant could have been removed) inevitably required an examination as to whether removal would violate the applicant's human rights. However, the delay is not properly categorised as arising from a failure on the part of the respondent over a period of more than 9 years to make a decision upon an asylum claim or upon further submissions sufficient to amount to a fresh claim under paragraph 353 based upon the 2002 letter.

7. Since the matter was last before the Upper Tribunal, the disclosure of documents has revealed that the applicant’s solicitors wrote a further letter on 6 January 2003 to follow-up the 2002 letter. In it, City Law Practice sought a Self-Completion Questionnaire at a time when this form was used to initiate an original claim for asylum. No details of any asylum claim are mentioned even in summary form and no human rights claim is mentioned. This letter does not, therefore, provide any basis for asserting years later that the respondent was under an obligation to reach a decision upon it.

8. Pausing there, the applicant knew that his asylum claim had failed and that he was required to leave. The 2002 letter could provide him with no basis for believing that he had a further right to remain or that the letter of 25 November 2002 which had told him that he should make arrangements to leave had been annulled or cancelled. Had the respondent in 2002, made a decision on the ‘claim’ in the 2002 letter for further leave to remain that application would have been doomed to fail; it contained no basis for further leave.

9. Much energy has been expended upon seeking to analyse the actions of the applicant and the respondent in the years that followed. It may therefore be helpful to provide a summary of events: CHRONOLOGY