The High Court granted E.M.S. leave to seek judicial review of a refusal to let her make a further application for refugee status. The ruling, delivered by Mr Justice Clarke on 21 December 2004, decided only that her case met the threshold for permission to bring the challenge; it did not determine whether the refusal was unlawful or whether she was entitled to refugee status.
The Minister for Justice, Equality and Law Reform had refused consent under section 17(7) of the Refugee Act 1996. The application for consent cited new information and changed circumstances, including the applicant’s pregnancy and deteriorating health, her psychological condition, country information about South Africa, her claim concerning HIV-related discrimination, and an alleged error in the Refugee Appeals Tribunal’s recommendation.
The deciding officer had said the pregnancy and medical condition did not concern persecution for a Convention reason. The officer also considered inadequate medical treatment irrelevant, said the alleged tribunal error would have been raised by the applicant’s former lawyers if genuine, and noted that concerns about the enforcement of rape laws had been raised in the earlier refugee application.
At the leave stage, the court considered whether the applicant had arguable grounds under the applicable higher threshold for judicial review applications in this area. Clarke found it arguable that discrimination in access to health care, or other discrimination such as shunning or exclusion, could in some circumstances reach the level of persecution. He said the material before the Minister could arguably show discriminatory treatment of people with AIDS in South Africa, partly connected to a policy view of the authorities, and could put the Minister on inquiry about other forms of discrimination.
The court also found it arguable that the officer had either wrongly treated the HIV-related information as only a health issue or had reached an irrational decision after considering it. It further found an arguable case that an error in the earlier tribunal decision might have affected its outcome, and that the officer’s reliance on the applicant’s former lawyers having missed the error might not satisfy the relevant test for considering a fresh claim.
On the rape-related ground, Clarke noted that the issue had been raised in general terms before the tribunal. He said a further report about the authorities’ alleged inability or unwillingness to prosecute rape cases might be insufficient new material, but that intervention was arguable, particularly if a more stringent standard of review applied.
The court therefore proposed granting leave to seek all the reliefs set out in the intended judicial review statement on each specified ground. The judgment did not grant those substantive remedies or decide the underlying claims.