Atabaky, R (on the application of) v Secretary of State for the Home Department

Where a statutory certificate restricts an asylum applicant’s appeal rights, judicial review may raise an important question whether an erroneous decision upholding the certificate should nevertheless be refused because a further appeal would probably fail. The discretionary nature of judicial review and the effect of the certificate require careful consideration. The adequacy of reasons is not necessarily undermined by brevity, provided the reasons are clear and sufficient. Where delay is a concern, the court may, if appropriate, determine the substantive judicial review application at the same hearing as the appeal.

The claimant, an Iranian national, sought permission to challenge a special adjudicator’s decision upholding the Secretary of State’s refusal of asylum and certification under paragraph 5(4)(a) of schedule 2 to the 1993 Act. The certificate restricted his further appeal rights.

Sullivan J refused permission to apply for judicial review. The claimant renewed his application in the Court of Appeal, alleging legal error in upholding the certificate and irrationality or unreasonableness in the adjudicator’s reasoning. The central issue was whether judicial review could properly be refused despite an arguable error where an appeal to the Immigration Appeal Tribunal would probably fail.

1. Permission granted. The Court of Appeal granted permission for the case to proceed to a full hearing on whether Sullivan J had correctly addressed the certification issue. The issue was important because certification restricted the claimant’s appeal rights in a difficult and sensitive area.
2. The court identified the central question as whether, and in what circumstances, judicial review of an erroneous decision upholding such a certificate could be refused on the basis that an appeal to the Immigration Appeal Tribunal would probably fail or would fail in any event. The discretionary nature of judicial review and related human rights arguments required consideration.
3. Permission was also granted on the reasons ground. The court stated that reasons may be adequate and clear even where they are briefly expressed. The issue was therefore suitable for argument at the same hearing.
4. To avoid further delay, the court directed that the appeal hearing should, if appropriate, include determination of the judicial review application originally before Sullivan J. The Home Office was to be informed, and the court should include a member with particular experience in this area.

The application was granted, with detailed assessment of the claimant’s costs.

• Court of Appeal (Civil Division): Permission to appeal and permission to argue the judicial review grounds were granted. The court contemplated determining the underlying judicial review application at the appeal hearing if appropriate.
• Administrative Court: Sullivan J refused permission to apply for judicial review of the special adjudicator’s decision.
• Special adjudicator: The claimant’s appeal against the refusal of asylum was dismissed and the certificate was upheld.