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

For certification under section 73(8) of the Immigration and Asylum Act 1999, the Secretary of State must reasonably conclude that the application is not properly arguable because it is hopeless or manifestly unfounded. The question is not whether the claim is likely to succeed on its merits. Fresh evidence must be considered, including whether it could realistically affect earlier findings. Judicial review requires anxious and rigorous scrutiny. Fresh psychiatric evidence based partly on rejected factual allegations may still make a human-rights claim properly arguable, particularly where the medical opinion on the risk of removal is strongly expressed and not merely speculative. The certificate was therefore quashed.

The claimant, a Turkish national of Kurdish origin, claimed asylum after entering the United Kingdom using a false passport. An adjudicator rejected his account of arrest and torture and dismissed his appeal. Permission to challenge that determination was refused.

The claimant later made human-rights representations relying on psychiatric evidence of depression, post-traumatic stress disorder and a serious risk of suicide if returned to Turkey. The Secretary of State refused the representations and certified under section 73(8) of the Immigration and Asylum Act 1999 that the application was intended to delay removal and had no other legitimate purpose. The central issue was whether the application was properly arguable, or instead hopeless and manifestly unfounded.

1. The claim succeeded. The certificate issued under section 73(8) of the Immigration and Asylum Act 1999 was quashed.
2. The court proceeded on the approach accepted by the Secretary of State from Vemenac [2002] Imm AR 613; [2002] EWHC 1636: certification required a reasonable conclusion that the claim was not properly arguable, in the sense that it was hopeless or manifestly unfounded. The court noted the materially different wording of section 73(8), but applied that approach for this case.
3. The assessment required the most anxious and rigorous scrutiny. The Secretary of State had to consider whether the new material could realistically affect the earlier adjudicator’s findings, consistently with the approach in Danaei [1998] INLR 124. The adjudicator’s cogent findings remained the starting point, and the later evidence might ultimately fail on appeal.
4. The psychiatric reports could not be dismissed as insignificant or incredible merely because they relied on the claimant’s account of torture, which had been rejected. They diagnosed depression and post-traumatic stress disorder and expressed a very strong opinion that removal would create a catastrophic deterioration and a grave suicide risk. That evidence could cast light backwards on whether a traumatic event had occurred and was materially different from the speculative medical evidence considered in Nadarajah [2002] EWHC 2595 Admin.
5. The application therefore could not reasonably be regarded as hopeless and manifestly unfounded. Any later appeal would need to begin with the original adjudicator’s findings and assess the later evidence with appropriate scepticism, bearing in mind Devaseelan [2002] UKIAT 05.

The judgment records that the adjudicator dismissed the claimant’s asylum appeal, the Immigration Appeal Tribunal refused permission to appeal on 19 July 2001, and Turner J refused permission for judicial review on 13 December 2001. The present court quashed the later section 73(8) certificate.