AS (Sri Lanka) v Secretary of State for the Home Department

For a claim certified as clearly unfounded, the question is whether there is a real, rather than fanciful, possibility that an immigration judge could allow the appeal. Relevant risk factors must be assessed cumulatively as well as individually. Past detention does not necessarily establish continuing official interest, particularly where the account indicates an informal, opportunistic detention by junior personnel who sought to conceal their conduct. Family links with an armed group and the absence of an identity card are relevant but may carry limited weight in context. The reviewing court may assess the claim afresh on the material and authorities before it. A claim is clearly unfounded where the evidence discloses no true basis on which an immigration judge could find a well-founded fear of persecution or a human-rights violation warranting a successful appeal.

The appellant, a Sri Lankan national from the north of the island, claimed asylum after alleging LTTE-related activities, detention, beatings and rape by army personnel. The Secretary of State refused the claim and certified it as clearly unfounded under section 94(2) of the Nationality Immigration and Asylum Act 2002, thereby preventing an appeal against the refusal.

Forbes J refused permission to seek judicial review. On appeal, the parties agreed that the Court of Appeal should determine the substantive judicial review question in light of the material before the judge and the subsequent country-guidance decision in LP (Sri Lanka) v SSHD. The central issue was whether the claim was clearly unfounded or whether there was a real, rather than fanciful, possibility of a successful appeal.

1. Appeal dismissed. The court considered the claim afresh on the factual material and authorities available to it, including LP (Sri Lanka) v SSHD.
2. The applicable approach was the test identified in ZL & VL v SSHD [2003] EWCA Civ 25: the question was whether an immigration judge might allow the appeal if the ordinary appeal process remained available, and whether that possibility was real rather than fanciful. The court noted, but did not resolve, the difficulty concerning the proper judicial-review approach to certification decisions identified in WM (DRC) v SSHD [2006] EWCA Civ 1495. The parties proceeded on the basis summarised by Buxton LJ in that case.
3. The relevant factors had to be examined both individually and cumulatively. The appellant’s lack of possession of her identity card was only one factor, and no practical difficulty in recovering it had been shown. Her family links with the LTTE carried limited weight because her father’s arrest had not led to past harassment of her, and her brother appeared to have remained in the area without molestation.
4. The circumstances of the detention did not indicate continuing official interest. On the appellant’s account, she was detained because her photograph was found in her boyfriend’s wallet; she did not describe detailed questioning or a warrant, and the personnel involved released her because they feared discovery by higher-ranking officers. The account therefore indicated an informal and opportunistic detention by relatively junior personnel, with no apparent record or continuing interest.
5. The country-guidance decision in LP (Sri Lanka) v SSHD (AA/07365/2005) treated the risk to a person informally detained and released without being brought before a court as likely to be below the level of a real risk. That observation was highly pertinent. Taken cumulatively, the factors disclosed no true basis for a finding of a well-founded fear of persecution for a Convention reason or of human-rights abuse warranting a successful appeal. The certification was therefore lawful and the appeal was dismissed.

1. Court of Appeal (Civil Division): [2008] EWCA Civ 717 — appeal dismissed.
2. Administrative Court: Forbes J refused permission to claim judicial review of the Secretary of State’s certification decision. No citation is stated in the judgment.