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

In judicial review of an asylum decision, the court reviews legality and the proper exercise of the Secretary of State’s discretion. It does not rehear the underlying asylum claim or substitute its own assessment of credibility.

An asylum interview is ordinarily required under rule 339NA of the Immigration Rules, but it may be omitted where the claim is clearly unconvincing or is made to delay or frustrate removal, provided the applicant has a reasonable opportunity to submit further information. A certificate under section 96(2) of the Nationality, Immigration and Asylum Act 2002 requires consideration of the statutory conditions and whether, having regard to all relevant factors, certification should be exercised as a matter of discretion.

Mrs Khan sought judicial review of the Secretary of State’s refusal of her asylum claim and of the associated removal decision. The removal directions were withdrawn during the proceedings, making that aspect academic.

Mrs Khan had entered the United Kingdom with her husband and children. Her husband’s asylum claim had been rejected, and the First-tier Tribunal had found his account fabricated and unreliable. Mrs Khan later claimed asylum when the family was detained for removal, relying on documents not previously disclosed. The Secretary of State declined to offer an interview and certified the claim under section 96 of the Nationality, Immigration and Asylum Act 2002. The issues were whether those decisions were lawful, irrational or procedurally unfair.

1. The claim was dismissed. The removal challenge was academic because the removal directions had been set aside. The court refused permission to appeal and ordered Mrs Khan to pay the Secretary of State’s costs, summarily assessed at £9,582.15.
2. Judicial review was not an appeal from the First-tier Tribunal. The court’s function was confined to reviewing whether the Secretary of State acted lawfully and within the ambit of her discretion. The Tribunal’s adverse credibility findings remained in place and could be used in assessing the later decision.
3. Rule 339NA of the Immigration Rules makes a personal interview the usual starting point, but permits omission where the representations are inconsistent, contradictory, improbable or insufficient so as to make the claim clearly unconvincing, or where the application is made merely to delay or frustrate removal. The applicant must then be given a reasonable opportunity to provide further information. The Secretary of State’s letter addressed the earlier one-stop notice, the rejected asylum claim, the late documents, their unexplained provenance and the timing of the application. It was therefore lawful to omit the interview.
4. Applying the four-stage approach identified in J v Secretary of State for the Home Department [2009] EWHC 705 (Admin), the Secretary of State was entitled to certify under section 96(2) of the Nationality, Immigration and Asylum Act 2002. Mrs Khan had received a section 120 notice in connection with a different decision; the later claim relied on matters which should have been raised earlier; no satisfactory explanation had been given; and the Secretary of State was entitled, having regard to the relevant circumstances, to exercise the discretion in favour of certification.
5. The complaints concerning natural justice, medical circumstances and the children’s interests under section 55 of the Borders, Citizenship and Immigration Act 2009 disclosed no legal error. The material concerning section 55 had been considered in the decision addressing the husband’s further representations, and no separate basis for challenging Mrs Khan’s asylum refusal was established.

The judgment is a first-instance judicial review decision. It records that the husband’s asylum refusal had been upheld by the First-tier Tribunal, but that decision was not under appeal in these proceedings. The court dismissed Mrs Khan’s claim and refused permission to appeal.