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

Certification under section 96(1) of the Nationality, Immigration and Asylum Act 2002 may be challenged only on conventional judicial review grounds, including irrationality or Wednesbury unreasonableness.

Where a later claim relies on matters that could have been raised in an earlier appeal, the decision-maker must consider both the reasons for the omission and the substance of the later claim. A detailed assessment of credibility, risk on return, the claimants’ ages and welfare may satisfy that obligation. The possibility that a person might practise Christianity discreetly because of fear of persecution does not, without more, establish an arguable challenge to certification.

The claimants, two minors from Iran, sought permission to apply for judicial review of certificates issued under section 96(1) of the Nationality, Immigration and Asylum Act 2002. Their asylum claims had been refused after the Secretary of State concluded that matters concerning Christianity could have been raised during their mother’s earlier appeal and that no sufficient reason justified the omission.

The claimants argued that their conversions occurred later, that the four-stage approach identified in R (J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) had not been applied, and that their risk on return had not been properly considered. They also relied on the reasoning concerning discreet conduct in R (HJ and HT Iran) v Secretary of State for the Home Department [2010] 3 WLR 386. The central issue was whether the certification was unlawful or irrational.

1. Permission to apply for judicial review was refused and the claim was dismissed. The claimants were ordered to pay £360 towards the defendant’s costs of the acknowledgment of service, with enforcement stayed until further order. Their costs were to be subject to detailed assessment.

2. The challenge concerned the certification under section 96(1) of the Nationality, Immigration and Asylum Act 2002, not the merits of the new asylum claims except so far as the Secretary of State was required to consider those matters when deciding whether to certify. The applicable challenge was therefore on conventional judicial review grounds, namely irrationality or Wednesbury unreasonableness.

3. The first two stages of the four-stage approach identified in R (J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) were clearly satisfied. The claimants had been dependent on their mother’s appeal, and she had ample opportunity to raise the issue of Christianity before that appeal was determined.

4. The Secretary of State was entitled to conclude at stage three that no sufficient reason had been given for failing to raise the issue earlier. The claimed later conversion did not require that conclusion to be rejected, since the mother’s evidence indicated prior awareness of the dangers of practising Christianity and she had raised other matters during the earlier hearing. Her lack of representation was consequently of limited significance.

5. At stage four, the decision-maker had properly considered the claimants’ individual accounts, including inconsistencies, the alleged attempt to influence a church integration officer, the genuineness of the conversions and the risk of persecution even if conversion were accepted. The reasoning was adequate. The decision letters also showed awareness of the claimants’ ages and welfare needs.

6. In light of R (HJ and HT Iran) v Secretary of State for the Home Department [2010] 3 WLR 386, the court considered whether discreet religious practice caused by fear of persecution could support the challenge. In the particular circumstances, however, the Secretary of State’s exercise of discretion had insufficient prospect of being successfully challenged.