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

For certification under paragraph 9(4)(a) of Schedule 4 to the Immigration and Asylum Act 1999, the decision-maker must examine the claim as a whole and ask whether its content shows a fear of persecution for a Convention reason. The question is not determined by the decision-maker’s own adverse credibility findings, although a bare assertion unsupported by material capable of establishing the relevant fear may be insufficient. A certification decision may be quashed where a material issue has been overlooked. Relief should be refused only in a plain and obvious case, having regard to the applicant’s lost statutory appeal rights and the possible merits of the proposed appeal. A failure to address torture expressly does not necessarily invalidate certification under paragraph 9(7) where the evidence plainly cannot establish a reasonable likelihood of torture.

The claimant, a citizen of the Democratic Republic of Congo, sought asylum after alleging persecution connected with his Rwandan ancestry and activities undertaken for Colonel Kabango. The Secretary of State certified the claim under paragraph 9(4)(a) of Schedule 4 to the Immigration and Asylum Act 1999, and the adjudicator upheld the certificate, removing any right of appeal to the Immigration Appeal Tribunal on the asylum issue. The adjudicator also dismissed the human rights appeal, and the Tribunal refused permission to appeal on that issue.

The claimant sought judicial review of the certification decision. The central questions were whether the adjudicator had properly applied paragraphs 9(4)(a) and 9(7), and whether relief should nevertheless be refused because a further appeal would have no realistic prospect of success.

1. Paragraph 9(4)(a). The adjudicator erred in concluding that the claim did not show a fear of persecution for a Convention reason. The relevant question concerned the sum total of the material advanced in support of the claim, rather than the adjudicator’s own findings on credibility. The account concerning Colonel Kabango, as interpreted by the adjudicator himself, disclosed alleged political intrigue of sufficient seriousness to engage a Convention reason.
2. Paragraph 9(7). The issue of torture required individual consideration and the adjudicator ought to have expressed his reasoning more fully. Nevertheless, the evidence, on any view, did not establish a reasonable likelihood that the claimant had been tortured. The deficiency therefore did not invalidate the certificate on this ground.
3. Discretion to refuse relief. The court retained a discretion to refuse relief after identifying a legal flaw, but that discretion should be exercised against a claimant deprived of statutory appeal rights only in the most plain and obvious cases. The claimant had identified an issue concerning risk as a failed asylum seeker which the adjudicator had overlooked. His further grounds concerning unfairness and the treatment of evidence were not devoid of arguability. The court could not discount a real prospect that the Immigration Appeal Tribunal would grant permission to appeal under rule 18(7) of the Immigration & Asylum Appeals (Procedure) Rules 2000.
4. Relief. The upholding of the certificate was quashed. The court declined to quash the adjudicator’s substantive determination. It remained for the claimant to seek permission to appeal to the Immigration Appeal Tribunal.

The judgment records that an adjudicator dismissed the claimant’s asylum appeal and upheld the certificate on 17 December 2001. The Immigration Appeal Tribunal refused permission to appeal concerning the human rights appeal on 22 August 2002. The Administrative Court quashed the certification decision but left the adjudicator’s substantive determination standing.