Mylvaganam, R (on the application of), Re

Permission for judicial review may be granted where the claimant identifies an arguable issue requiring substantive consideration, even though the claim may ultimately fail on the facts. A procedural-unfairness ground will not succeed where the claimant’s own representations were materially deficient and the decision-making process was otherwise adequately explained. In an immigration case involving certification under section 94 of the 2002 Act, the court must consider whether the certification and removal issues require examination in light of the applicable authority and the claimant’s particular circumstances.

The claimant challenged the Secretary of State’s decision letter dated 30 July 2004, including certification under section 94(2) and (3) of the 2002 Act. He alleged procedural unfairness and contended that removal to parts of Sri Lanka might be unsafe because of his asserted high-profile political status as a Tamil who did not support the LTTE.

Mr Justice Davis rejected the procedural-unfairness ground but considered that the removal and political-status issues disclosed an arguable point. The application was therefore at the permission stage, not a determination of the substantive merits.

1. Permission granted in part. The court rejected the procedural-unfairness ground. The claimant’s assertion of unfairness was weakened by the fact that his own representations to the Secretary of State were not properly prepared.

2. The Secretary of State had issued a detailed decision letter dated 30 July 2004 and had certified the claim by reference to section 94(2) and (3) of the 2002 Act. The court noted that those provisions were to be construed in the light of Thangarasa.

3. The court was just persuaded that the decision letter raised an arguable issue concerning whether the claimant could safely be removed to particular parts of Sri Lanka. That issue depended on the claimant’s asserted high-profile political status as a Tamil who did not support the LTTE.

4. Granting permission did not indicate that the substantive claim would succeed. The court expressly left open whether the argument would be established at the substantive hearing and whether the factual claims could survive examination before an adjudicator.

5. The substantive judicial review hearing was directed to be expedited. Costs were reserved to the full hearing.