Gopalakrishnan, R (on the application of) v Immigration Adjudicator & Anor

An adjudicator considering certification under paragraph 9 of Schedule 4 to the Immigration and Asylum Act 1999 must first decide whether a valid certificate exists. If it does, the adjudicator must make an independent assessment, based on all the evidence then available, of whether the statutory conditions apply. The exercise is not judicial review of the Secretary of State’s opinion. A claim is manifestly unfounded where the decision-maker is reasonably and conscientiously satisfied that the allegation must clearly fail. On judicial review, the court examines the adjudicator’s conclusion and whether it was reasonably open on the evidence. Relief may properly be refused where quashing certification would serve no useful purpose because no real prospect of a successful further appeal is shown.

The claimant, a Sri Lankan Tamil asylum seeker, challenged the adjudicator’s decision agreeing with certification of her asylum claim under paragraph 9 of Schedule 4 to the Immigration and Asylum Act 1999. Certification prevented a further appeal to the Immigration Appeal Tribunal.

She argued that the Secretary of State had wrongly certified that her claim was manifestly unfounded and that paragraph 9(7), concerning evidence establishing a reasonable likelihood of torture, did not apply. The central issues were the adjudicator’s statutory function, the proper approach to the two certification limbs, and the scope of judicial review.

1. The claim was dismissed. The adjudicator had a valid certificate before him because the Secretary of State had expressly certified that paragraph 9(4)(b) applied and paragraph 9(7) did not apply.
2. The adjudicator’s function under paragraph 9(2) was to decide whether he agreed with the opinion expressed in the certificate. This required a fresh and independent assessment of whether the relevant statutory provisions applied, based on all the evidence before him. It was not a review of whether the Secretary of State’s opinion had been reasonably open on the evidence.
3. Reasons for certification were not legally essential to the certificate’s validity, although policy might require them and adequate reasons would often be helpful. The adjudicator was not required to review the Secretary of State’s reasons as such.
4. The court rejected the approach in R (Prabaharen) v Special Adjudicator [2001] EWHC Admin 764 and followed the approach in R (Farkondeh) v Special Adjudicator [2002] EWHC 384 (Admin). The threshold question identified in SSHD v Salah Ziar [1997] INLR 221 remained relevant.
5. The meaning of “manifestly unfounded” was governed by the test stated in R (Thangarasa) v Secretary of State for the Home Department [2002] 4 All ER 800: the allegation must clearly fail, viewed after a reasonable and conscientious review of the material. The adjudicator’s adverse credibility findings made that conclusion reasonably open and, in the judge’s view, inevitable.
6. The same reasoning supported the conclusion under paragraph 9(7). The adjudicator was entitled to disbelieve the claimant’s account of ill-treatment and find that the evidence did not establish a reasonable likelihood of torture.
7. The judge added that, even if the Secretary of State’s certification itself had been reviewable, relief would have been refused because no real prospect of a successful appeal to the Immigration Appeal Tribunal had been shown.

• Adjudicator: dismissed the asylum appeal and agreed with certification under paragraph 9 of Schedule 4 to the Immigration and Asylum Act 1999.
• High Court (Administrative Court): dismissed the judicial review claim.