Nyapokoto, R (on the application of) v An Adjudicator

Judicial review of an asylum decision should not proceed where the underlying appeal has no real prospect of success, even if an arguable defect exists in a certificate preventing an appeal to the Immigration Appeal Tribunal. General country evidence of persecution does not compel a finding that an individual claimant faces persecution. Findings on credibility and personal risk remain matters for the specialist fact-finder where they are open to it. An arguable error concerning a manifestly fraudulent certificate does not necessarily undermine separate findings rejecting the claimant’s account.

The claimant, a Zimbabwean national, sought asylum on the basis of political persecution by Zanu PF supporters and war veterans. A special adjudicator dismissed his appeal and upheld the Secretary of State’s certificate that his claim was manifestly fraudulent, thereby preventing an appeal to the Immigration Appeal Tribunal.

Burton J refused permission to apply for judicial review. Sedley LJ indicated that the certificate issue might be arguable but considered that the underlying appeal had no real prospect of success. On the renewed application, the Court of Appeal considered whether the alleged errors and further country evidence justified judicial review and an onward appeal.

Application refused. Lord Justice Tuckey refused permission to appeal and agreed with Sedley LJ that there was no basis for judicial review.

1. The court was entitled to consider the merits of the underlying asylum claim. The applicant accepted that permission to apply for judicial review would not be granted if there was no real prospect of a successful appeal to the Immigration Appeal Tribunal, even if the certificate point were established.
2. The special adjudicator had considered the applicant’s explanation for delaying his asylum claim and the objective material concerning Zimbabwe. Evidence that opposition supporters generally faced harassment and ill-treatment did not compel the conclusion that this claimant personally faced persecution. The assessment of individual risk was a question of fact, and the adjudicator’s findings were open to him.
3. Further evidence describing continuing intimidation in Zimbabwe presented no materially different picture from that before the special adjudicator. It therefore did not create a real prospect that the underlying appeal would succeed.
4. An arguably defective approach to the manifestly fraudulent certificate did not necessarily invalidate the separate credibility findings. A possible error on the certificate issue did not show that the adjudicator was unable to assess whether events had occurred between August and December 2000.
5. Sedley LJ’s view that a manifestly fraudulent certificate is appropriate only where deliberate deception is plain was accepted by Lord Justice Tuckey, but the certificate issue was not necessary to the disposition. The application for permission to appeal was refused, with detailed assessment of the claimant’s Community Legal Services Funding.

• Court of Appeal (Civil Division): On the renewed application, permission to appeal was refused. The judgment is reported at [2002] EWCA Civ 1554.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Burton J refused permission to apply for judicial review.
• Special adjudicator: The claimant’s asylum appeal was dismissed and the Secretary of State’s certificate that the claim was manifestly fraudulent was upheld.