R (L) v Secretary of State for the Home Department

The Court of Appeal dismissed the appellants' renewed applications for permission to seek judicial review of refusals of asylum and of certificates issued under section 115 of the Nationality, Immigration and Asylum Act 2002. The court considered the legal effect and fairness of certifying asylum and human-rights claims as "clearly unfounded" under s.115(6), including the procedure used at the Oakington fast-track centre and the standard to be applied when deciding that a claim is "clearly unfounded". The court held that decision-makers must ask whether, on any legitimate view of the facts and law, the claim may succeed; if so, it is not "clearly unfounded". The court rejected the submission that acting on s.115 before the published Act was unfair in these cases because the court itself could review and re-evaluate the material; it also held that the fast-track procedures, properly applied, need not be inherently unfair but that decision-makers must defer where further evidence (for example medical or country-expert material or unresolved issues of authenticity) is necessary to raise an arguable case. Applying those principles to the evidence about the Czech Republic (including IAT decisions such as Puzova and country material from Dr Chirico) and to the appellants' individual accounts (including a rape allegation by ZL), the court concluded there was no arguable case of persecution or insufficiency of state protection that would render the Secretary of State's decisions unlawful.

This is an appeal against Goldring J's decision refusing permission to seek judicial review of s.115 certificates issued by the Secretary of State rejecting asylum and human-rights claims. The applicants were a mother (ZL) and son (VL) from the Czech Republic, processed at the Oakington fast-track centre. They challenged the decisions on grounds that: (i) the 2002 Act had not been promulgated in printed form when the decisions were taken; (ii) there were inadequate procedural safeguards; (iii) the fast-track procedures were unfair; and (iv) the certification decisions were unsound.

The court framed three main issues: the effect of delayed promulgation of the Act on fairness; whether the Oakington fast-track procedure (including an initial interview and a "second pair of eyes" review) provides a fair opportunity to raise an arguable claim; and the meaning and application of the statutory test "clearly unfounded" in s.115.

The court reviewed the constitutional principle of legal certainty and noted that Acts take effect on Royal Assent, but observed that delay in printing can impede access to an authentic text. The court, however, limited its inquiry under Article IX of the Bill of Rights and focused on whether the Secretary of State was entitled or fair in acting on s.115 before printed promulgation. It held there was no obligation to act before promulgation and that acting in advance was not necessary; but where the court could undertake full review and the new material (including expert country evidence) was before the court, any unfairness in acting prematurely was cured in these cases.

The court examined Oakington's timetable and safeguards (day 0 arrival; consultation days 1–2; interview day 3; further submissions days 4–5; decision days 6–7) and concluded the fast-track process can be compatible with fairness provided officers recognise cases where additional time or evidence is required (for example medical or expert country reports or document authentication). The court articulated the legal test under s.115 as objective: a claim is "clearly unfounded" only if it cannot on any legitimate view succeed; credibility findings alone do not suffice unless no one could possibly believe the account.

The court applied these principles to the Czech Republic evidence. It accepted that prior IAT decisions (notably Puzova) support a general finding that the Czech Republic normally provides sufficient protection to Roma, but acknowledged volatile localised problems described by Dr Chirico. It considered the applicants' factual accounts, including ZL's late allegation of rape by a police officer, and concluded that the overall evidence did not establish an arguable case of persecution or systemic state failure to protect. The Article 8 family-life point was also rejected. The appeals were dismissed and applications for permission for judicial review refused.

Appeal dismissed. The court held (i) that while Acts take legal effect on Royal Assent, administrative action in reliance on unpromulgated text raises concerns of legal certainty and fairness, but in these cases any unfairness was cured by the court’s ability to review the material; (ii) that the Oakington fast-track procedure is not inherently unfair but decision-makers must defer where required evidence (medical, country-expert or authentication) or time is necessary to raise an arguable claim; and (iii) that under s.115 a claim is "clearly unfounded" only if it cannot on any legitimate view succeed. Applying those principles to the facts and evidence (including country material on the Czech Republic and the applicants' individual accounts), the Secretary of State’s refusals and certifications were not unlawful.

Appeal from the Administrative Court (Queen's Bench Division), Goldring J (judgment delivered in the Administrative Court; applicants sought permission to apply for judicial review of the Secretary of State's decisions under s.115 of the Nationality, Immigration and Asylum Act 2002).