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The asylum merry-go-round

The asylum merry-go-round

Lord Justice Ward is at it again:

This is another of those frustrating appeals which characterise – and, some may even think, disfigure – certain aspects of the work in the immigration field. Here we have one of those whirligig cases where an asylum seeker goes up and down on the merry-go-round leaving one wondering when the music will ever stop. It is a typical case where asylum was refused years ago but endless fresh claims clog the process of removal.

This are the first words of his judgment yesterday in the case of R (on the application of TM) v Secretary of State for the Home Department [2012] EWCA Civ 9. One of the subheadings in the judgment is actually entitled ‘The depressing story in more detail’. Fifteen fresh asylum claims were apparently submitted by the same appellant, an Ahmadi from Pakistan, between 1998 and 2008, and that does not include the attempt to amend the judicial review grounds at a late stage to include the reasoning in the landmark Supreme Court judgment HJ (Iran) in the challenge. This prompted the unnecessarily acerbic suggestion that the carousel was kept turning by Counsel, Manjit Gill QC. An alternative way of seeing Counsel’s late amendment was as an attempt to stop the carousel by making the current proceedings as final as possible rather than reserving a matter for a future fresh claim, which would otherwise have been inevitable.

Ward LJ’s ire has not been reserved exclusively for appellants. In MA (Nigeria) v Secretary of State for the Home Department [2009] EWCA Civ 1229 (click here for post on this case) he asked rhetorically of the Home Office’s catalogue of errors ‘is this the way to run a whelk store?’. The merry-go-round analogy first appears in his judgment in RM (Zimbabwe) v Secretary of State for the Home Department [2011] EWCA Civ 428 (click here for post) and was directed in that case at the astonishing asylum appeal process that has been created by government.

This sort of case, where an asylum claimant has been up and down the court process several times, will no doubt undermine public confidence in the asylum system. An alternative way of looking at it — likely to be something of a minority viewpoint — is that the anxious scrutiny clearly given to such a case is entirely appropriate in the context of a potentially life or death decision for the claimant and that the high level of scrutiny gives confidence that the claim has been properly and exhaustively examined.

There are also reasons to recall why some asylum seekers may be serial litigants. Firstly, the system has been designed that way. It is rare to see sensible, logical reasons in a Home Office immigration decision. Any such decision will always be susceptible to legal challenge, and rightly so. The means by which such challenges are brought are constantly being changed by successive legislation, which does not assist with achieving finality. Secondly, asylum claimants are both desperate and have nothing to lose. Some might think this consistent with their claims being false. It is equally consistent with their claims being genuine, however. Thirdly, the Home Office is hopeless at pursuing enforcement action against those whose claims do fail, meaning that the opportunity to make repeat claims certainly arises.

Ward LJ ends his judgment in TR with these words:

It is time the music stopped and the merry-go-round stops turning … [TR’s] claim for judicial review is now dismissed. Enough of the whirligig. The Secretary of State is now entitled to take steps to remove him.

Few would have any confidence that any such steps will swiftly follow.

Free Movement
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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