Sivapalan & Anor, R (on the application of) v Secretary of State for the Home Department

For a certificate that an asylum or human-rights claim is clearly unfounded to stand, the reviewing court must ask whether the claim could succeed on any legitimate view before the appellate tribunal. The court exercises careful supervisory scrutiny, particularly where removal may expose a claimant to a breach of fundamental rights. A claim may fail that threshold for asylum while still raising a legitimate prospect of success under Article 3 or Article 8. In assessing that prospect, the decision-maker must consider the evidence in the round, including risk indicators, detention, identification documents, language, scars, personal safety and the claimant’s established private life. Earlier adverse findings in proceedings involving a parent are not automatically determinative, particularly where the children were minors, did not participate effectively, or the earlier findings are unclear.

Two sisters, who had arrived in the United Kingdom as minors with their mother and later made claims in their own right, challenged certificates issued under section 94(2) of the Nationality, Immigration and Asylum Act 2002. Their asylum and claims under Articles 3 and 8 of the Convention had been certified as clearly unfounded, preventing an in-country appeal.

The Secretary of State maintained the certificates after reconsideration. The sisters relied on their history in Sri Lanka, possible detention and ill-treatment, scarring, lack of identification documents, inability to speak Sinhala, and their established private lives in the United Kingdom. The central issues were whether their claims could succeed on any legitimate view before the appellate tribunal and whether findings made in their mother’s earlier proceedings constrained their evidence.

Applications allowed. The certificates relating to the Article 3 and Article 8 claims were quashed. Although the asylum claims would fail before a properly directed tribunal, the Article 3 and Article 8 claims could not be characterised as clearly unfounded.

1. The court applied the supervisory approach in R (Razgar) v Home Secretary [2004] 2 AC 368. The question was whether either claim could succeed on any legitimate view before an AIT, not whether the judge would himself allow it.
2. For the asylum claims, the evidence did not establish a legitimate basis for finding a well-founded fear of persecution by state agents. The evidence showed, at most, risks associated with random arrest and ill-treatment. The court therefore upheld the certificates in substance on this issue.
3. Article 3 was different. The possible detection of torture scars, the risk that detention records existed, the absence of proper identification documents, and the risk of detention and sexual or other ill-treatment during security round-ups provided a legitimate basis for an AIT to find a real risk of serious or degrading treatment.
4. The earlier proceedings involving the mother did not determine the sisters’ evidence. The court accepted the Devaseelan guidelines in Devaseelan v SSHD [2002] UKAIT 702; (2003) Imm AR 1, as extended in AA (Somalia) v SSHD [2007] EWCA Civ 1040. But the earlier findings were unclear, the sisters had been minors without an effective role, and the abduction evidence was hearsay. Those were very good reasons not to treat the earlier decision as determinative, although some additional scepticism was appropriate.
5. Article 8 private life was also capable of being engaged. The sisters’ age on arrival, lengthy residence, education, integration, language difficulties, lack of contacts and identification documents, and fear for personal safety supplied a legitimate basis for success. Article 8 did not guarantee United Kingdom living standards, but economic or physical hardship was not the only consideration.

The certificates concerning the asylum claims were not quashed. The certificates concerning Articles 3 and 8 were quashed. Costs were reserved for further argument if necessary.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment. The applications were permitted to proceed by McCombe J on 2 March 2007 after new material became available.