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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MK, Re Application for Judicial Review [2007] ScotCS CSOH_109 (26 June 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_109.html Cite as: [2007] CSOH 109, [2007] ScotCS CSOH_109 |
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 109 |
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P1951/05 |
OPINION OF LORD McEWAN in the petition of M K Petitioner; for Judicial Review of decisions by the Secretary of State for the Home Department (i) dated (ii) dated ญญญญญญญญญญญญญญญญญ________________ |
Petitioner: Forrest;
Drummond Miller, W.S.
Respondent:
[1] This
Petitioner is a citizen of lesbian
. It is alleged that this has
caused her a number of difficulties in
asylum
in July 2002. Her claim was refused. The letter of refusal is not in the papers
before me. As was her right, she
appealed to an adjudicator (Mrs Murray) and her case was heard in February
2003. The Determination is No 6/2 of
Process and was signed on 13 March. She
then appealed to the Immigration Appeal Tribunal (the IAT) (Miss K Eshun) who
refused permission to appeal. The
Reasons are dated
[2] What
happened next is the essence of the case now before me in the amended Petition
(No 14 of Process) and amended Answers (No 15 of Process). It may firstly be summarised in this
way. After her appeal was refused the
Petitioner alleges she came into possession of new material, placed this before
the Respondent with a request that it be treated on a fresh application. The Respondent twice refused to do so and
later issued directions for her removal.
It is these decisions which the Petitioner wishes to reduce. The argument before me on this matter was in
narrow compass and raised the question of whether the Respondent had applied
the correct test in rejecting her request; whether the reasons he gave were
sufficient and whether the decisions could be challenged on Wednesbury grounds. I was given a number of authorities but only
a few of these were canvassed viz R
(Onibiyo) v Secretary of State for
the Home Department [1996] QB 768; Secretary
of State for the Home Department v Boybeyi
[1997] Imm. A.R. 491 and Ladd v
[6] Let
me turn now to look more closely at events.
I do not have the original Home Office refusal letter. It is not lodged but in the circumstances
that may not matter. It was a decision
on the claim from which she had a right of appeal to the Adjudicator. That appeal was heard at asylum
in the
[12] I am quite clear that the matter before me raises the first
stage of what may have become a two stage process. The Respondent is faced with a decision upon
whether the "new" information is a "fresh claim for asylum
". It is his function at first instance to
decide that and he can only be challenged on Wednesbury grounds (ex parte Onibiyo 785). If he decides
that it is a fresh claim, then he has to decide it on the merits and grant or
refuse
asylum, with all subsequent rights of appeal to the appellate
authorities. In the present case the
Petitioner has not overcome the first hurdle.