CR2-09-11-26-Judgements_IMX30_1.mxf

Session: judgment
Session date: 2009 Nov 26

CASE ID: UKSC 2009/0098
Case name: BA (Nigeria) (Respondent) (FC) v Secretary of State for the Home Department (Appellant) and others
Case summary:
Judgment: The appeal by the Secretary of State is dismissed by a majority of four to one. A claim for asylum which has been rejected should be allowed to proceed to appeal in-country under sections 82 and 92 of the Nationality, Immigration and Asylum Act 2002, unless it has been certified as clearly unfounded under section 94 or excluded under section 96. This should be so whether or not the Secretary of State has accepted it as a fresh claim. (Paragraph [32]) Lord Hope gave the majority judgment of the Court. Lady Hale dissented.
Reasons for the judgment: Lord Hope considered the phrase “an asylum claim, or a human rights claim” in s 92(4)(a) in the context of the 2002 Act as a whole and rejected the Appellant’s argument that the Supreme Court should follow the interpretation in R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768. In Onibiyo,“claim” in the context of the 1993 Act was held to mean a first claim, or a second or subsequent claim which has been accepted as a “fresh claim” by the Secretary of State, but not a claim which is repetitious. Lord Hope determined that whilst the 2002 Act uses substantially the same words as the 1993 Act, the statutory system is markedly different given the addition of a range of powers enabling the Secretary of State or immigration officer to deal with repetitious claims. No inference was drawn from the amendment of s 113 by s 12 of the Immigration, Asylum and Nationality Act 2006 as it is not yet in force. (Paras [25]-[29]; [44]–[46]) In a case such as this where no certification has been given under s 94 (providing for the exclusion of appeals that are clearly unfounded) or s 96 (removing the right of appeal if the claim raises an issue which has been or ought to have been dealt with in an earlier appeal), there is no need to impose a further requirement which is not mentioned elsewhere in the 2002 Act, namely that the words “a...claim” exclude a further claim which has not been held under rule 353 to be a fresh claim. (Para [29]) The Appellant’s construction risks undermining the beneficial objects of the Refugee Convention, as it would exclude, by s 95, claims which the Secretary of State considers not to be fresh claims from the ground of appeal in s 84(1)(g), when claims which are certified as clearly unfounded under s 94 would still be given the benefit of that section. (Section 84(1)(g) provides for an appeal where removal would place the UK in breach of its international or human rights obligations.) (Paras [30]–[32]; [47]) Rule 353 does not affect the operation of the legislative scheme, which provides the complete code for dealing with repeat claims. (Para [33])Lady Hale, dissenting, would have allowed the appeal. Lady Hale concluded “a...claim” in s 92(4)(a) of the 2002 Act ought to be given the same meaning ascribed to the phrase in the 1993 Act in Onibiyo. There was no need for it to be defined in the 2002 Act given it had already been judicially interpreted. (Paras [39]–[40]) The addition of sections 94 and 96 should not be taken to mean that Parliament had abandoned the old meaning of “claim” without expressly saying so, particularly as the additional sections are not apt to cater for repetitious claims. (Paras [41]–[42]) Lady Hale disagreed that the Appellant’s construction would undermine the UK’s international obligations. A person who presents a repeat claim on asylum or human rights grounds has already enjoyed the right of appeal on these grounds within this country. The current system allowing for an initial decision followed by an appeal system in the UK is sufficient compliance with those obligations. (Paras [42]-[43]).

CASE ID: UKSC 2009/0106
Case name: R (on the application of A) (FC) (Appellant) v London Borough of Croydon (Respondents) and one other action
Case summary:
Judgment: The Court unanimously allowed these appeals. The lead judgment of the Supreme Court was given by Lady Hale. The other members of the Court (Lord Hope, Lord Scott, Lord Walker, and Lord Neuberger) agreed with her.
Reasons for the judgment: On the first main issue, Lady Hale explained that the many references to “a child” throughout the 1989 Act must mean the same thing, that is, a person who is in fact a child. There was a right or a wrong answer to this question, difficult though it might be to decide it in some cases. It was a different type of question from whether the child was “in need” within the meaning of the Act, which involved a number of different value judgments suitable for expert assessment by social workers (paragraphs [26]-[27]). She pointed out, however, that local authorities (or the UK borders agency in asylum cases) will still have to decide whether or not a person is a child in the first instance; it will only be if this remains disputed that the court may have to take the decision itself (paragraph [33]). On the second main issue, Lady Hale said that it was unnecessary, in light of her conclusion on the first issue, to reach any firm conclusions on the application of Article 6 of the Convention (paragraph [34]). She declined to decide whether a child’s entitlement to accommodation under the 1989 Act was a “civil right”, but commented that she would be most reluctant to hold that Article 6 required the judicialisation of claims to welfare services of this kind (paragraphs [44]-[45]). Lords Scott, Walker and Neuberger agreed with her approach (paragraphs [66]-[68). While agreeing that it was unnecessary to reach any firm conclusions on the point (paragraph [50]), Lord Hope doubted whether the duty of local authorities to provide accommodation under the 1989 Act gave rise to a “civil right” within the meaning of Article 6 of the Convention (paragraphs [55]-[65]).