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

A human-rights claim may be certified as clearly unfounded only where it has no prospect of success. The test is binary: if any reasonable doubt exists about whether the claim may succeed, certification is impermissible.

The assessment must take account of material available by the time of judicial review, including developments after the Secretary of State’s decision. In assessing risk on return, relevant country guidance and risk factors must be considered individually and cumulatively. A low-level former combatant may therefore have an arguable claim where changed country conditions and other identified risk factors create a prospect of ill-treatment.

The claimant, a Sri Lankan national and former LTTE combatant, challenged the Secretary of State’s decision of 16 June 2009 certifying his human-rights claim against deportation as clearly unfounded under section 94(2) of the Nationality Immigration and Asylum Act 2002.

An earlier tribunal had found that the claimant had been an ordinary LTTE combatant but had concluded in November 2006 that he faced no real risk on return. Following further representations, subsequent country developments, updated guidance and the defeat of the LTTE in May 2009, the Secretary of State maintained the deportation order and certified the claim. The central issue was whether there was any prospect that the claimant could succeed before the Asylum and Immigration Tribunal on the current material.

1. The claim for judicial review succeeded. The certification under section 94(2) of the Nationality Immigration and Asylum Act 2002 was quashed. The defendant was ordered to pay the claimant’s costs, with a public funding assessment.
2. The applicable test, derived from ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, is a black-and-white test. Where primary facts are undisputed, a claim is clearly unfounded only if there is one rational answer and no reasonable prospect of success. Any reasonable doubt as to possible success prevents certification.
3. The court could review all material available at the date of the judicial review, rather than being confined to material before the Secretary of State on 16 June 2009. The question was whether developments since the tribunal’s decision in November 2006 created some prospect of success.
4. Three developments were material: the re-criminalisation of LTTE membership by the 2006 emergency regulations; the guidance in LP (Sri Lanka) [2007] UK AIT 00076, endorsed in substance by NA v United Kingdom; and the post-May 2009 position in Sri Lanka, including evidence that persons with LTTE connections could face additional questioning, detention or investigation.
5. The guidance required assessment of the claimant’s history, actual LTTE involvement and the extent to which that involvement might be known to the Sri Lankan authorities. The risk factors identified in LP (Sri Lanka) were not an exhaustive checklist. They had to be considered individually and cumulatively. The claimant’s Tamil ethnicity, former LTTE combatant status and scarring were capable of being significant, particularly because the earlier tribunal had found that his LTTE involvement would become apparent on return.
6. Taking the developments together, it could not be concluded that the Tribunal would inevitably find no real risk of ill-treatment. The low threshold identified in R (AK (Sri Lanka)) v Secretary of State for the Home Department [2009] EWCA Civ 447 was crossed.

The judgment itself does not state an appellate history. It records earlier asylum and deportation decisions and the Secretary of State’s subsequent certification decision.