SB (Uganda) v Secretary of State for the Home Department

The threshold for certifying an asylum claim as clearly unfounded is low. Certification is unlawful where new material gives a tribunal a more than fanciful chance of reaching a different conclusion on risk of persecution. Earlier findings and authority concerning materially different conditions cannot be treated as determinative. Expert evidence about group treatment must be assessed on its merits; a lack of numerous identified incidents does not justify disregarding it. Detention pending deportation must have a rational basis, comply with the Secretary of State’s policy guidance, and serve the statutory purpose of removal. Detention intended to effect removal is unlawful where a court order prohibits steps towards removal.

The claimant, a Ugandan lesbian, challenged decisions certifying her further asylum and human-rights representations as clearly unfounded, certifying them under section 96(1) of the Nationality, Immigration and Asylum Act 2002, and detaining her pending removal.

An Immigration Judge had previously accepted that she was a lesbian, had been arrested twice because of her sexual identity, and was at risk of arrest in Kampala, but concluded that she could live discreetly in Uganda without facing persecution. The claimant relied on later expert and country evidence concerning worsening treatment of homosexual people, the proposed Anti-Homosexuality Bill, and risks arising from her previous arrests and wanted-list status. The central issues were whether the Secretary of State could lawfully certify the claim as clearly unfounded and whether the detention was lawful.

1. Section 94(2) certification. The court held that the test for “clearly unfounded” was, in practice, materially the same as whether there was no realistic prospect of success on a fresh claim. It imposed a very low hurdle. If there was a chance that an independent tribunal could find a real risk of persecution, the claim required an in-country appeal.
2. The Court of Appeal decision in JM (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 1432 was not determinative. That decision proceeded on evidence that Ugandan anti-homosexual legislation was not enforced and that there was no arrest, harassment or abuse by the authorities or public. The later evidence in this case materially differed, including evidence of arrests, ill-treatment, worsening public and governmental hostility, and the proposed Anti-Homosexuality Bill.
3. Expert evidence concerning ill-treatment of lesbians as a group was relevant to the claimant’s individual risk. Its general character and the scarcity of specific examples did not justify ignoring it. The evidence had the potential to undermine the earlier findings concerning internal relocation, the severity of detention conditions and the possibility of living discreetly.
4. The Secretary of State therefore erred in concluding that there was no chance, or more than a fanciful chance, that a tribunal would reach a different conclusion. The section 94(2) certification was quashed. The court expressed no view on the ultimate merits of the asylum claim.
5. The section 96(1) certification was also quashed because the asylum claim relied on new evidence which could not have been raised in its present form in the earlier appeal.
6. Detention. Detention pending deportation had to have a rational basis, comply with the Secretary of State’s own policy guidance, and be directed to the statutory purpose of removal. Removal was not properly treated as imminent when a judicial-review order prohibited steps towards removal and the Secretary of State had taken no proper step to secure an expedited hearing or lift the order. The asserted risk of absconding was unsupported by the contemporaneous records.
7. Detention intended to effect removal was itself a step towards removal and breached the injunction of 12 November 2009. The detention from 13 to 17 November 2009 was declared unlawful, the detention decision was quashed, and assessment of damages was transferred to the appropriate county court.

The judgment describes earlier proceedings before an Immigration Judge, a Senior Immigration Judge and the High Court:

• Immigration Judge: Immigration Judge Grimmett dismissed the claimant’s appeal in a determination dated 6 April 2009.
• Senior Immigration Judge: reconsideration was refused on 27 April 2009.
• High Court: Burton J refused reconsideration on 15 July 2009.
• Administrative Court: judicial review was allowed. The relevant certifications and detention decision were quashed, detention was declared unlawful, and damages were transferred for assessment.