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

Section 96 of the Nationality, Immigration and Asylum Act 2002 may apply to a fresh asylum or Article 3 claim. Certification is discretionary and requires a structured four-stage process. The decision-maker must separately consider whether the matter could or should have been raised earlier, whether there is a satisfactory reason for that omission, and whether certification should nevertheless be exercised. In asylum and Article 3 cases those questions require anxious scrutiny of all relevant circumstances, including the merits of the fresh claim, the reason for its realistic prospect of success, the explanation for the earlier omission and the consequences of removing the right of appeal. A matter being available earlier, or an explanation being uncorroborated, is not automatically decisive. Judicial review remains an effective remedy for Article 3 purposes. The certificate was quashed because the decision-maker treated certification as automatic and failed to address the latter stages of the statutory process.

The claimant, a Sri Lankan national, had made an unsuccessful asylum and human-rights claim and had exhausted his appeal. He later made further representations asserting that his earlier account had been false because former solicitors had advised him to suppress his substantial involvement with the LTTE. The Secretary of State accepted, for the purposes of the proceedings, that the representations amounted to a fresh claim with a realistic prospect of success, but certified the claim under section 96 of the Nationality, Immigration and Asylum Act 2002, thereby preventing an appeal.

The claimant sought judicial review, arguing that certification was unlawful because the claim was a fresh asylum and Article 3 claim, and because the Secretary of State had failed properly to apply section 96. The central issues were whether section 96 could apply to such a claim and whether the certification decision lawfully addressed the statutory conditions and discretion.

1. Claim allowed in part. The section 96 certificate was legally flawed and was set aside. The Secretary of State was required to reconsider the February 2004 claim and whether to certify it.
2. Section 96 applied, as a matter of statutory construction, to asylum and Article 3 claims. Article 3 did not require an automatic in-country appeal where judicial review provided an effective remedy. The claimant’s broader challenge under section 3 of the Human Rights Act 1998 therefore failed.
3. Certification required four stages: identifying the earlier appeal or one-stop notice; deciding whether the matter could or should have been raised earlier; forming the opinion that there was no satisfactory reason for the omission; and deciding, having regard to all relevant factors, whether to exercise the discretion to certify.
4. The second-stage question and the third-stage question were distinct. The fact that a matter could or should have been raised earlier could not itself establish that there was no satisfactory reason for the omission. Nor did it automatically determine whether certification should be exercised.
5. In an asylum or Article 3 case the decision-maker had to apply anxious scrutiny and consider the circumstances generously. Relevant considerations ordinarily included the nature of the claim, the risk of persecution, death or torture, the fact and reasons for finding a realistic prospect of success, the strength of the claim, the explanation for the earlier omission, and whether credibility would be better tested by an appellate tribunal than by judicial review.
6. A changed account, an admission that the claimant had previously lied, or an uncorroborated allegation of bad legal advice could be taken into account, but was not ordinarily decisive. A claimant’s conduct did not deprive him of substantive asylum or Article 3 protection.
7. The decision letter stated that certification followed merely because the matters could and should have been raised earlier. It contained no adequate reasoning on the satisfactory-reason stage and no indication that the discretion to certify had been exercised. The decision therefore failed at stages three and four.
8. The later 2006 evidence could not retrospectively determine the legality of the 2006 certificate, but it should be considered when the Secretary of State reconsidered the earlier claim.

The judgment records that permission for judicial review was granted by Fulford J on the certification ground. The Administrative Court allowed that challenge and required reconsideration. Permission to amend the separate delay ground was refused.