The High Court refused an applicant leave to challenge a negative asylum recommendation and the Refugee Appeals Tribunal’s decision affirming it, ruling that she had not shown special circumstances to justify bringing judicial review after her appeal was decided.
In a judgment delivered on 23 February 2007, Ms Justice Finlay Geoghegan said the applicant had established substantial grounds for arguing that the Refugee Applications Commissioner’s investigation and interview breached fair procedures. She also found substantial grounds for arguing that the Commissioner may have given unlawful weight to a decision by the United Kingdom Home Office. Those were grounds for seeking leave, not findings that the asylum process was unlawful.
The applicant, who said she was Somali and had arrived in Ireland in August 2004, had earlier applied for asylum in the UK under a different name and date of birth. Irish officials learned of that application through fingerprint information. At an interview in February 2005, the interviewer disclosed the UK application to the applicant’s support workers during a break. Their requests to adjourn the interview or speak privately with the applicant were refused. An affidavit described the resumed interview as confrontational and said the applicant became distressed. The Commissioner’s recommendation that she should not be declared a refugee followed the next day.
The applicant appealed. Her legal representatives also asked the Commissioner to withdraw the recommendation and conduct a fresh investigation, and asked the Tribunal to hold its decision while that request was considered. The Commissioner refused on 5 April 2005. The Tribunal had issued its decision on 11 March, but notified the applicant on 22 April: it affirmed the Commissioner’s recommendation.
The court held that the Commissioner’s report remained a distinct decision capable in law of judicial review after the Tribunal appeal. But the appeal’s completion weighed heavily against later intervention. The judge said that, in the ordinary course, an applicant who has allowed an appeal to be determined has gone too far to seek judicial review of the first-instance decision. Leave could still be granted in special circumstances necessary to do justice.
Here, the applicant knew the grounds after the interview and the Commissioner’s letter, had legal representation, and did not take steps to stop the Tribunal deciding the appeal after the Commissioner refused to reopen the case. The judge said she had acquiesced in or permitted the appeal to be determined and had not established the required special circumstances.
The court refused leave to challenge both the Commissioner’s recommendation and the Tribunal’s decision. The Tribunal challenge depended on the challenge to the Commissioner, and no independent substantial ground had been established. The ruling was about permission to bring judicial review; it did not decide the underlying asylum claim or whether the alleged procedural defects were proved.