The High Court refused a child’s application for leave to challenge the Refugee Applications Commissioner’s refusal to accept a further asylum application and rejected a request to extend the time for challenging a deportation order made in 2005.
In a judgment delivered on 19 May 2009, Ms Justice M. H. Clark found that the child had been included in his mother’s asylum application. The mother had completed a form seeking to include him and confirmed at her interview that she wanted him considered with her claim. She was invited to raise issues concerning her children, but the court found that she did not identify any separate fear of persecution for her son at that time.
The mother’s asylum claim was refused in 2004, and a subsequent appeal also failed. The judgment records that neither decision discussed the child in its substantive reasoning, though a letter notifying the mother of the appeal decision said he was included as a dependant. The court rejected the argument that the absence of specific discussion meant no asylum application had been made or considered on his behalf.
The child’s mother later alleged that he would face tribal rituals and facial markings if returned to Nigeria. The court noted that this fear had not been raised during the earlier asylum process or in later representations for subsidiary protection. It rejected the challenge to ORAC’s January 2009 refusal to accept a fresh individual application, while noting that a genuinely new fear could be put to the Minister through the procedure under section 17(7) of the Refugee Act 1996.
The separate challenge to the deportation order was brought nearly four years after it was made, far beyond the statutory 14-day period. The court considered the child’s age, the length of the delay, the availability of legal advice, the explanation offered, the apparent strength of the case and possible injustice. It found that the child and his mother had been legally represented during the relevant period, that the explanation for the delay was inadequate, and that the proposed grounds did not justify an extension.
The court refused to extend time. As a result, the application for leave to seek judicial review failed. The judgment concerned whether leave should be granted; it did not itself make a new deportation order.