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

Certification under section 94(2) is inappropriate where, on at least one legitimate view of the facts or law, an asylum or human-rights claim may succeed. A previous adverse credibility finding is a proper starting point for considering further submissions, but it is not necessarily the end point. New evidence may require reconsideration, particularly where it is material, comes from another witness, and is supported by independent expert evidence. A decision-maker cannot safely exclude psychiatric or psychological evidence by attributing symptoms simply to disappointment at an earlier refusal when the evidence does not support that conclusion. Updated country information must also be considered where it materially changes the assessment of risk. The question is whether an appeal would be bound to fail, not whether the Secretary of State considers the claim unlikely to succeed.

The claimant, an Iranian national, sought judicial review of decisions certifying her asylum and human-rights claims as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002. Her original asylum claim had been rejected following adverse credibility findings concerning her alleged conversion to Christianity, domestic violence and her husband's membership of the Basij.

After the earlier proceedings, she submitted further evidence, including a statement from her son and psychiatric and psychological evidence concerning his depression and symptoms of post-traumatic stress disorder. The Secretary of State maintained that the further material merely repeated the earlier claim. The central issue was whether the new material meant that an appeal was not bound to fail and therefore prevented certification.

1. Certification test. The court was concerned only with certification, not with deciding whether the asylum claim would ultimately succeed. Applying ZL & VL v Secretary of State for the Home Department [2003] EWCA Civ 25, if on at least one legitimate view of the facts or law the claim may succeed, it is not clearly unfounded. In a credibility case, disbelief by the decision-maker is not enough; certification on credibility alone is appropriate only where nobody could believe the account.
2. Earlier determination and new evidence. Under the guidance endorsed in LD (Algeria) v Secretary of State for the Home Department [2004] EWCA Civ 804, the earlier tribunal decision was the starting point. It did not require the same result. The son's evidence was new and went directly to the alleged violence and the husband's position. The psychiatric and psychological evidence was also new, independently supported the account, and could not fairly be dismissed as mere disappointment about the refusal. The earlier tribunal had not considered that evidence. Taken together, the material could affect the assessment of the case in the round.
3. Corroboration. It was legally untenable to treat the son's evidence as incapable of adding anything because the claimant had already given evidence about the same matters. Corroborative evidence from another witness can strengthen credibility.
4. Country information and conversion. The Secretary of State was required to have regard to current guidance indicating that converts from Islam in Iran might face serious persecution, including imprisonment or death. The updated information presented a materially different risk from the older material considered previously. The court also identified a risk in treating the genuineness of a professed conversion as determinative: even if the profession were not genuine, it might still be perceived in Iran as evidence of apostasy.
5. Disposition. The claimant's appeal was not bound to fail. The certificates were therefore unlawful and were quashed. The decisions of 14 October 2011 and 21 June 2012 certifying the asylum claim under section 94(2) were quashed. The defendant was ordered to pay the claimant's judicial-review costs, subject to assessment if not agreed, with public funding assessment of publicly funded costs.

The judgment states that the claimant's original asylum appeal was dismissed by the First-tier Tribunal on 20 May 2010. Permission to appeal was refused by Senior Immigration Judge Jordan and a further application was refused by Senior Immigration Judge Gleeson. The present proceedings concerned only the later certification decisions, not the merits of the asylum claim.