The High Court struck out a judicial review proceeding challenging the refusal to allow a subsequent asylum application, before the applicant’s application for leave to seek judicial review had been heard.
The respondent had asked the court to dismiss the proceeding as frivolous, vexatious, bound to fail or disclosing no cause of action. Mr Justice Cooke ruled on 22 November 2011 that the case was bound to fail and dismissed it, citing the applicant’s history of abuse of the asylum system and judicial process.
The underlying challenge concerned the Minister for Justice and Equality’s refusal, communicated on 29 April 2011, to consent to a further asylum application under section 17(7) of the Refugee Act 1996. The court stressed that the issue in any judicial review would be the legality of that refusal, based on the material put before the Minister at the time. It was not deciding whether the applicant had an arguable refugee claim based on fear of persecution in Zimbabwe.
The judgment recounts that the applicant had previously sought asylum using the name Martha Kenny and claiming South African nationality. She later used the name Annastacia Robertson and a South African passport, and maintained that identity during two detention inquiries. In the present proceedings, she admitted that those accounts involved lies and said she was Sikhumbuzo Ncube, a Zimbabwean national. The judgment describes the history as highly uncertain because of admitted lies, falsehoods, forgeries and perjury.
The Minister’s refusal memorandum found that the claimed identity and nationality did not provide convincing new evidence and could reasonably have been raised earlier. The court concluded that the proposed Zimbabwe claim could have been made in the original asylum application. It also noted that the applicant had deliberately concealed her claimed identity and nationality, so their absence from the earlier application was through her own fault.
The court considered amendments to section 17(7), effective from 1 March 2011. Under the new statutory test, consent to a subsequent asylum application requires new elements or findings that make refugee status significantly more likely, and that the applicant was, through no fault of their own, incapable of presenting them earlier. The court said those conditions closely corresponded to the two limbs of the test applied in the refusal memorandum. Although the statutory test was not expressly cited in the refusal, the court held that any new decision on the existing request would have to apply it and the result would inevitably be the same.
The ruling disposed of the judicial review proceeding at the strike-out stage. It did not determine the merits of a refugee claim or grant consent for a subsequent asylum application.