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

In reviewing a decision on further submissions, the court asks whether the Secretary of State identified the correct question and applied anxious scrutiny. If so, the decision is challengeable only on Wednesbury grounds. Country guidance does not lose its binding or persuasive force merely because permission to appeal has been granted. It remains effective unless overturned or replaced. A decision-maker may therefore rely on existing country guidance when deciding a fresh claim or certification application, although the individual circumstances and objective evidence must be assessed rationally and fairly. The grant of permission to appeal, without more, does not establish that the country guidance is wrong or create a procedural obligation to accept a fresh claim.

The claimant, an Iraqi national subject to a deportation order, challenged the refusal to revoke that order and the refusal to treat further submissions as a fresh claim. The Secretary of State had also certified the claim under section 94 of the Nationality, Immigration and Asylum Act 2002, preventing an in-country appeal.

The decisions relied substantially on the Upper Tribunal’s country guidance in HM and others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC). The claimant relied on new country material and on the fact that permission to appeal against HM had been granted. The central issues were whether the new material created a realistic prospect of success and whether the challenged status of HM prevented reliance upon it.

1. The claim was unarguable and permission to seek judicial review was refused. The claimant’s removal directions had been deferred, but neither the certification decision nor the fresh-claim decision was unlawful.
2. Under paragraph 353 of the Immigration Rules, the Secretary of State had to ask whether the further submissions, taken with the previously considered material, created a realistic prospect of success before a tribunal. Applying R (WM (DRC)) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the court’s task was to ensure that the correct questions had been asked and that anxious scrutiny had been applied. If so, the decision could be challenged only for irrationality. The same approach remained applicable following R (TK) v Secretary of State for the Home Department [2010] EWCA Civ 1550 and MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193.
3. For section 94 certification, the court adopted the approach identified in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6: the Secretary of State had to apply anxious scrutiny and reach a conclusion she was entitled to reach. The claimant had not shown that the certification decision failed that standard.
4. The Danish report, reports concerning alleged mistreatment on return, and the Finnish judgment KHO:2010:84 did not materially undermine HM. The Finnish decision concerned materially different facts and did not involve the same extensive assessment of country information. It was therefore distinguishable and did not show that the claimant’s case had a realistic prospect of success.
5. Country guidance endorsed by the Upper Tribunal remained binding within the terms of the Practice Direction unless overturned on appeal or replaced. The mere grant of permission to appeal did not suspend its force. The Secretary of State was entitled to rely on HM when making certification and fresh-claim decisions. R (Nasire) v Secretary of State for the Home Department [2010] EWHC 3359 (Admin) did not establish a wider rule requiring decisions or removals to be deferred whenever country guidance was under challenge. A stay could instead be sought where appropriate, as illustrated by R (Lutete) v Secretary of State for the Home Department [2007] EWHC 2331 (Admin).

The judgment states that permission to appeal had been granted against HM and others (Article 15(c)) Iraq CG [2010] UKUT 331 (IAC). That appeal did not suspend the country guidance. No appellate history for the present claim is stated.