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

A certificate that an asylum claim is clearly unfounded is lawful only where the claim cannot succeed on any legitimate view. The assessment is objective and must give full weight to Article 3 obligations. The court must consider whether the claimant’s account, taken at its highest where it is not inherently incapable of belief, could establish a real risk of persecution or mistreatment.

In assessing risk on return, decision-makers must consider the claimant’s individual profile and all relevant factors cumulatively, including previous detention, bail jumping or failure to report, scarring, the availability of official records, airport procedures and the current country situation. The absence of a formal charge or an earlier uneventful return is not necessarily conclusive. If the claim has a legitimate prospect of success, certification is impermissible.

The claimant, a Tamil from Jaffna, sought judicial review of certificates issued under section 94 of the 2002 Act. The Secretary of State had concluded that his asylum claim was clearly unfounded and reconsidered that conclusion during the proceedings.

The claimant relied on a fear of persecution and Article 3 mistreatment by the Sri Lankan authorities. His case included earlier detention and ill-treatment, failure to comply with reporting conditions, LTTE involvement and facial and bodily scarring. He accepted that he could relocate within Sri Lanka and did not rely on LTTE threats.

The central issue was whether, having regard to the claimant’s account, the country evidence and the current security situation, the claim was incapable of succeeding on any legitimate view.

The application was allowed. The decisions to issue or reconfirm the certificate, including the decisions reflected in the letters of 7 March, 26 March and 8 October 2008, were quashed. The claimant’s costs were to be assessed if not agreed.

1. The test for certification was objective. Applying ZL and VL v Secretary of State for the Home Department [2003] EWCA Civ 25 and Thangarasa v Secretary of State [2002] UKHL 36, the question was whether the claim was so lacking in substance that it was bound to fail. The assessment had to give full weight to the United Kingdom’s obligations under Article 3.
2. The claimant’s account was not inherently incapable of belief. The court therefore had to ask whether, on the facts presented, it could support a real risk of persecution or Article 3 mistreatment. The court was not required to determine the ultimate merits of the asylum claim.
3. The guidance in LP (Sri Lanka) CG [2007] UKIAT 76, considered alongside NA v United Kingdom [2008] ECHR and AN and SS [2008] UKAIT 63, required an individual and cumulative assessment. Relevant matters included previous detention, failure to report or bail jumping, scarring, possible records held by the authorities, the risk of detention and interrogation at the airport, and current conditions in Sri Lanka.
4. The claimant’s two periods of detention were lengthy and apparently formal. His second detention followed failure to comply with reporting conditions. Those matters could support an inference that records existed and remained available. Payment of money for release, absence of a formal charge and the uneventful return in 2002 did not conclusively negate that possibility.
5. If the detention and reporting history came to light, together with the scarring, there was a real risk of interrogation and mistreatment, or at least a legitimate basis on which an immigration judge could so conclude. The claim therefore could not properly be certified as clearly unfounded.

The judgment describes earlier refusals and reconsiderations by the Secretary of State and the grant of permission for judicial review by Goldring J. No appellate history is stated.