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

Permission for judicial review should be granted where a genuinely arguable challenge to the inclusion of a country within the statutory list under section 94 warrants authoritative determination at a substantive hearing. The existence of potentially distinguishing features does not prevent permission where the issue merits full consideration. Permission may be granted on all grounds when the principal arguable issue justifies a substantive hearing.

This was a renewed application for permission after permission had been refused by a single judge on the papers. The claimant challenged the Secretary of State’s decision, including certification under section 94 and the inclusion of Bangladesh in the relevant country list. The court considered whether the challenge to Bangladesh’s inclusion was sufficiently arguable, in light of the Court of Appeal decision in Javed, to justify a substantive hearing.

1. The renewed application was granted. The court considered the claimant’s background and the detailed decision letter of 26 November 2003 unimpressive, and regarded a successful challenge to the certification decision as difficult to establish.
2. The challenge to the inclusion of Bangladesh in the section 94 list raised a distinct and properly arguable issue. The claimant was entitled to rely on the Court of Appeal decision in Javed, where a similar conclusion had been reached concerning Pakistan. The court recognised that the present case might be distinguishable, but that did not justify refusing permission without a full hearing.
3. Because the issue could benefit from a substantive hearing and an authoritative determination of the position, permission was granted on all grounds. The substantive hearing was to address the issue, including analysis of the objective evidence. Costs were reserved.

Permission had previously been refused by a single judge on the papers. On renewal, the High Court (Administrative Court) granted permission on all grounds and directed a substantive hearing.