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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Anufrijeva v Secretary of State for the Home Department Secretary of State for Work and Pensions [2002] EWCA Civ 399 (22nd March, 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/399.html Cite as: [2002] EWCA Civ 399 |
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C/2001/1325 |
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SIR CHRISTOPHER BELLAMY
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE HALE
and
LORD JUSTICE SEDLEY
____________________
NADEZDA ANUFRIJEVA | Appellant | |
- and - | ||
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT THE SECRETARY OF STATE FOR WORK AND PENSIONS | Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
John HOWELL Q.C. and Nigel GIFFIN (instructed by Treasury Solicitor for the Respondents)
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Schiemann:
The is the Judgment of the Court.
“..... a person –
(a) is an asylum seeker when he submits on his arrival ..... in the United Kingdom .... a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom’s obligations under the [Refugee] Convention for him to be removed from, or required to leave, the United Kingdom and the claim is recorded by the Secretary of State as having been made;
….... and
(b) ceases to be an asylum seeker –
(i) in the case of a claim for asylum which .... is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the day on which it is so recorded.....”
Your Claim for Income Support
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“.... it was the contention of the Attorney-General that the question whether a decision had been given per incuriam was not to be determined according to any hard and fast rule, but was one of degree, depending upon the special circumstances of the case.....
We have been unable to accept this argument. As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be .... of the rarest occurrence...... It is, in our judgment, impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which judgments were based and to say of it: “Here was a manifest slip or error”. In our judgment, acceptance of the Attorney-General’s argument would necessarily involve the proposition that it is open to this court to disregard an earlier decision of its own .... whenever it is made to appear that the court had not upon the earlier occasion had the benefit of the best argument that researches and the industry of Counsel could provide. Such a proposition would, as it seems to us, open the way to numerous and costly attempts to re-open questions now held to have been authoritatively decided.”
“These decisions show that this court is justified in refusing to follow one of its own previous decisions not only when that decision is given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding upon it, but also, in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error. In previous cases the judges of this court have always refrained from defining this exceptional category and I have no intention of departing from that approach save ... to say that they will be of the rarest occurrence. Nevertheless some general considerations are relevant. First, the preferred course must always be to follow the previous decision, but to give leave to appeal in order that the House of Lords may remedy the error. ... Second, certainty in relation to substantive law is usually to be preferred to correctness, since this at least enables the public to order their affairs with confidence. Erroneous decisions as to procedural rules affect only the parties engaged in the relevant litigation. This is a much less extensive group and accordingly a departure from established practice is to that extent less undesirable. Third, an erroneous decision which involves the jurisdiction of the court is particularly objectionable .....”
“The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.
I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straightforward and in other cases the problem of when a determination is made may depend on the precise factual context of each case. In this very case, the first issue is expressed to arise “On the facts of this case;” the second issue concerns the question whether the Secretary of State had any discretion to record and rescind his decision and whether the discretion was exercised rationally and fairly in the instant case.
In the second place, Mr. Pannick, on the basis of instructions from both the Home Office and the Department of Health and Social Security, told us that only in a few cases has this question arisen. In Reg. v. Secretary of State for the Home Department, Ex parte Karaoui The Times, 27 March 1997 the issue was whether there was a record; the determination was quashed because there was no record. In Reg. v. Secretary of State for the Home Department, Ex parte Bawa, (unreported), 27 October 1997 the claim was accepted by the Home Office after the trial judge’s decision. In two other cases, applications are being made for judicial review, but leave has not yet been given. The unusual facts of the present case do not seem to provide a good basis for the matter to be raised as a general principle, the particular lis has gone.
This was not brought as a test case and in my view these factors outweigh any possible advantages for the legal aid board in dealing with this case, which has proceeded so far.
Moreover, pursuant to the White Paper published in 1998, it may be that the procedures to be followed will be reconsidered.”
“8. Any British citizen whose claim for social security benefit is refused is not entitled to receive that benefit while appealing against refusal. Yet under the existing rules any asylum seeker whose claim for asylum is rejected by the Home Office can continue to claim benefits while appealing against refusal. As a result a high proportion of asylum seekers whose asylum claim is rejected appeal against that decision, even though only 4 per cent. Of such appeals are upheld. The Regulations submitted to the committee would put asylum seekers on a similar basis to British benefit claimants. They will continue to be entitled to appeal, but will not be able to receive benefits while doing so . . .”
Under this policy, once an asylum seeker knows that her application has been refused, and that she is not to be given leave to enter the country on any other basis, and has the reasons for those decisions, she can reasonably be expected to make a choice: either to accept the decision and leave or to stay and fight but without recourse to state benefits. But she cannot reasonably be expected to make that choice before she knows of the decisions and the reasons for them. There is nothing in the material before us to suggest that it is consistent-p with the declared purpose of the regulation to expect her to do so. This must cast at least some doubt upon the construction of the regulation adopted in Salem or at least on the practice of ‘recording’ the decision long before the asylum seeker learns that, let alone why, it has been made.