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

A certificate under section 94 of the Nationality Immigration and Asylum Act 2002 is lawful only where the asylum or human rights claim is clearly unfounded. The threshold is high: the claim must be incapable of succeeding on any legitimate view or so lacking in substance that an appeal would be bound to fail. Country guidance should generally be followed, but it is not legally rigid precedent. An adjudicator may depart from it for legally adequate reasons, including changed circumstances or significant new evidence. Where country guidance identifies several categories of persons potentially at risk, the Secretary of State cannot lawfully treat the guidance as confined to only one category without clear justification. A claim must not be certified where the assumed facts raise a real possibility, however borderline, that it could succeed.

The claimant, a Sri Lankan Tamil, sought judicial review of the refusal of her asylum and human rights claims and of their certification as clearly unfounded under section 94 of the Nationality Immigration and Asylum Act 2002. Permission was granted on a limited question concerning whether an adjudicator could regard her as potentially at risk under the country guidance decision in PS v Secretary of State for the Home Department [2002] UKIATOO439.

Her case was that she had been an intelligence operative associated with Colonel Karuna after the LTTE schism, had fled with senior Karuna supporters, and had subsequently been sought by the LTTE. The central issue was whether, assuming the account to be true for present purposes, the claim was so lacking in substance that any appeal would be bound to fail.

1. The claim for judicial review succeeded and the Secretary of State’s certificate was quashed. The claimant was left free to appeal to the Asylum Immigration Tribunal. The defendant was ordered to pay 50 per cent of the claimant’s costs, subject to detailed assessment, with a public funding assessment.

2. Country guidance cases have a distinct status. Accepting the statement in NM & Ors (Somalia) a Country Guidance [2005] UKIAT0076, the court held that such guidance should ordinarily be applied unless it is inapplicable on the particular facts for legally adequate reasons, circumstances have materially changed, or significant new evidence warrants revision or refinement. It does not have the rigidity of a legally binding precedent.

3. The court applied PS v Secretary of State for the Home Department [2002] UKIATOO439. Properly read, that decision identified three potentially overlapping categories of persons at risk in Colombo: prominent opponents of the LTTE, LTTE defectors, and persons closely associated with the internal schism as supporters of Colonel Karuna. The guidance was not confined to persons who were also high-profile.

4. The test for certification, derived from R v Bagdanavicius [2004] INLR 163, imposes a high threshold. The question was whether the claimant’s case could succeed on any legitimate view or was so wholly lacking in substance that an appeal would be bound to fail.

5. Although the case was close to the borderline, the assumed facts, taken cumulatively, raised a possibility that could not be dismissed as unfounded. The claimant’s intelligence role, association with Colonel Karuna and senior supporters, pursuit by the LTTE, increasingly insistent demands that she report for interview, and supporting expert evidence meant that the certificate could not lawfully stand. The refusal of permission to appeal was based on the view that the decision was a one-off case rather than general guidance.

The judgment describes an application for permission to bring judicial review. On 21 February 2005, Evans-Lombe J granted permission on the papers, limited to one ground. The Administrative Court then quashed the certificate. Permission to appeal to the Court of Appeal was refused.