28/03/2011
The recent Court of Appeal ruling in MN (Tanzania) v Secretary of State for the Home [2011] EWCA Civ 193 has clarified that the correct test to be applied in determining an application for judicial review of a Secretary of State's decision to refuse to treat further submissions as a fresh claim was the Wednesbury test. Rory O’Ryan of GCN was interviewed for Lexis Nexis Current Awareness (published 25/3/11) about the implications of the case
Extracts from the article as follows:
So how useful is the judgment in providing guidance on the issues arising in this case? “On the first point, Maurice Kay LJ (with whom Mosses LJ and Sullivan LJ agreed without comment), said that he ‘tend(ed) to be of the view’ that the date of approval of the transcript of the earlier judgment was not the crucial date - if it were, it would have potential for uncertainty verging on chaos,” explains [Rory] O’Ryan . “On that basis, the Court held that the judgment in the later case was indeed per incuriam. However, the consideration given to this issue was brief, and the acknowledged ‘erudite submissions’ received are not set out; constitutional lawyers may feel short changed on the point.”
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So what are the implications of the judgment for practitioners? “In fact, the practical implications are not great,” reveals O’Ryan. “It has been, and remains imperative that fresh claims should be as detailed as possible, supported by evidence; the vaguer the assertions in a fresh claim, the easier it is for the Secretary of State to reject it. Even if the Administrative Court were ever able to substitute its own view for that of the Secretary of State on the merits of the fresh claim, this would never be an excuse for practitioners to prepare weak fresh claims, however difficult it is to prepare such an application, often being made at a time when a client is detained pending removal.”
> MN (Tanzania) v Secretary of State for the Home [2011] EWCA Civ 193 judgment