Asylum claim refused and appeal dismissed - further application for review - limits of secretary of state's power to restrict further appeals

R (Sandhu) v Secretary of State for the Home Department: QBD (Mr George Bartlett QC sitting as a deputy High Court judge): 16 September 2003

The claimant, a citizen of India, was refused asylum in the UK and his removal was ordered.

He appealed against that decision but failed to attend the appeal hearing in August 2001 without explanation.

In 2002, he applied for the original decision to be reviewed, advancing the fact that he was married with a child as reasons for seeking to remain.

In March 2003, the secretary of state directed his removal certifying, under section 73(8) of the Immigration and Asylum Act 1999, that one purpose of the application was to delay removal and there was no other legitimate purpose, since the marriage issue could have been raised at the appeal hearing and the matter had been finally determined in 2001.

The claimant sought judicial review, contending that in view of his circumstances and the fact that his human rights claim had never been determined, it could not be said that his purpose in making the application lacked legitimacy.

Robin Halstead (instructed by Maher & Co, Harrow) for the claimant; Adam Robb (instructed by the Treasury Solicitor) for the secretary of state.

Held, quashing the decision to issue the certificate, that it was not the purpose of section 73(8) of the 1999 Act to enable appeals in hopeless cases to be excluded or to require claimants to bring all claims within one appeal but to enable the secretary of state to exclude the right of appeal where an application had been made as a tactic to delay removal; and that, since the decision letter had not addressed that question, the certificate could not stand.