Feruzi v Special Adjudicator & Anor

An immigration adjudicator must give reasons when upholding certification provisions that remove or restrict an asylum claimant’s right to seek leave to appeal. A bare statement that certificates are upheld is inadequate. Where such certification is arguably flawed, permission for judicial review may properly be granted, even though the court may consider the underlying asylum claim weak. The merits of the substantive asylum challenge may nevertheless be considered by the Administrative Court when the permission application proceeds.

The claimant challenged an immigration adjudicator’s dismissal of his asylum appeal and the adjudicator’s decision to uphold certificates under Schedule 4 to the 1999 Act. The certificates deprived him of a right to seek leave to appeal to the Immigration Appeal Tribunal. The adjudicator gave no reasons for upholding them.

Sir Edwin Jowitt held that the certification decision was arguably challengeable but refused permission because the substantive asylum claim appeared to have no merit and further litigation would serve no useful purpose. The claimant renewed his application in the Court of Appeal. The central issue was whether permission should be granted despite the judge’s assessment of the underlying asylum claim.

1. Application granted. Lord Justice Dyson granted permission to apply for judicial review and permitted amendment of the grounds within 14 days. Costs were reserved, with assessment on a public funding basis.
2. The adjudicator’s statement that he upheld the certificates, without giving reasons, was plainly insufficient. The defect applied both to the certificate under paragraph 9(4)(a) and to the issue under paragraph 9(7) of Schedule 4 to the 1999 Act. The court followed the approach in Atabaky [2002] EWCA Civ 234.
3. An arguable challenge to the certificates was sufficient to justify granting permission. The claimant was entitled to develop grounds alleging that the adjudicator failed to address the risk of persecution as a failed asylum seeker and misinterpreted expert evidence concerning the plausibility of his account.
4. The proposed grounds alleging unfairness and irrationality could also be advanced, although the court identified considerable difficulties and warned that the claimant might face an uphill struggle in seeking to quash the substantive asylum decision.
5. The weakness of the substantive asylum claim did not justify refusing permission where the certification decision itself was arguably flawed. The substantive issues were matters properly to be considered by the Administrative Court.

• Court of Appeal (Civil Division): Permission granted to apply for judicial review; amendment of the grounds permitted within 14 days.
• High Court, Administrative Court: Sir Edwin Jowitt refused permission on 4 July 2002, although he considered the certification decision arguably challengeable, because the substantive asylum claim appeared to have no merit.
• Immigration adjudicator: The claimant’s asylum appeal was dismissed and the certificates were upheld without reasons.