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

For judicial review of a certification that an asylum claim is clearly unfounded, the court assesses the lawfulness and rationality of the decision on the material available to the Secretary of State when it was made. Later evidence cannot be used to substitute the court’s own assessment, although it may support a request for reconsideration.

The certification exercise is distinct from deciding whether fresh representations amount to a fresh claim under rule 353 of the Immigration Rules. In an Article 8 case, the Secretary of State must address proportionality, including the effect of removal on family members and the relevant immigration circumstances. The claimant’s relationship history and immigration history may properly be significant factors.

The claimant, a Nigerian national, sought judicial review of the Secretary of State’s refusal of his asylum claim and certification of both his asylum and Article 8 claims as clearly unfounded under section 94(3) of the Nationality, Immigration and Asylum Act 2002.

He argued that the Secretary of State had applied the wrong test, failed properly to assess the risks arising from his alleged Niger Delta Vigilantes involvement, and inadequately considered his relationship with a Nigerian partner who had indefinite leave to remain. The court also considered further representations and proposed expert evidence concerning conditions in Nigeria. The central issues were whether the certification decisions were unlawful or irrational and whether later material could be relied upon in the judicial review.

1. Renewed application refused. The claimant’s application for permission to proceed with judicial review was refused. The claimant was ordered to pay £540 costs for preparation of the Acknowledgement of Service, subject to the qualification that enforcement would require an inquiry into his means because he was publicly funded.
2. The Secretary of State had not treated the claimant’s account of events as accepted merely by recording it. The decision concerned whether the claim was clearly unfounded, rather than whether fresh representations amounted to a fresh claim under rule 353 of the Immigration Rules. The current state of authority indicated no practicable difference between a clearly unfounded claim and a claim with no realistic prospect of success.
3. Judicial review addressed the lawfulness and rationality of the decision made on 12 February 2010. A later expert report, unavailable to the Secretary of State when the decision was made, could not be used to substitute the court’s assessment on different evidence. It could instead be submitted to the Secretary of State with a request for reconsideration.
4. On the material before the Secretary of State, it was not arguable that the asylum claim had been wrongly certified. The Secretary of State was entitled to rely on the claimant’s period outside Nigeria, the circumstances of his alleged arrest and release, improving conditions, the availability of state protection and the viability of internal relocation.
5. For Article 8 purposes, the Secretary of State was entitled to conclude that the claimant had not established family life with his partner, having regard to inconsistencies in the evidence and the short period for which the relationship had existed before his detention. Even if family life had been established, the Secretary of State had considered the effect of removal and the factors identified as relevant in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 and Chikwamba v Secretary of State for the Home Department [2008] UKHL 40. The claimant’s relationship length and immigration history were legitimate factors in assessing proportionality.

The judgment itself records that permission to proceed was refused on the papers by Owen J. The claimant renewed the application, which was heard orally before the Administrative Court and refused by Mr Justice Keith.