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

For the purposes of certification under section 94, the Secretary of State may certify a human-rights or asylum claim where, after reviewing the material, she is reasonably and conscientiously satisfied that it must clearly fail. The reviewing court must assess whether the issue was properly and conscientiously considered, including relevant factual circumstances and other claims advanced.

The decision-maker may determine the application as made and is not required to recast an asylum application as an application for leave to remain. Where the claimant’s spouse and child are also expected to leave, the decision-maker may proceed on that factual basis rather than speculate about possible future procedural steps.

The claimant sought judicial review of the Secretary of State’s refusal of his asylum claim and certification of the claim as clearly unfounded. The claim included arguments under Article 8 of the Convention and section 55 concerning his young daughter, who was born and educated in the United Kingdom.

The claimant’s wife had an earlier refusal of asylum, with her appeal rights treated as exhausted. The Secretary of State reconsidered the claimant’s case following a consent order and issued further decision letters. The central issues were whether the certification decision was irrational, whether the claimant’s family and private-life circumstances had been properly considered, and whether the Secretary of State was required to treat the claim as one for leave to remain.

1. Claim dismissed. The Secretary of State had reasonably and conscientiously considered the claimant’s asylum, human-rights and private-life claims and was entitled to conclude that they were apt for certification.
2. The applicable certification test under section 94 was that the Secretary of State must be reasonably and conscientiously satisfied, after reviewing the material, that the allegation must clearly fail. The essential judicial-review question was whether she had adequately considered and resolved whether the human-rights claim was manifestly unfounded, applying the guidance in R v SSHD ex parte (Thangarasa) [2002] UKHL 36.
3. In assessing family life and the section 55 issue, the Secretary of State was entitled to proceed on the basis that the claimant’s wife’s appeal rights were exhausted and that the wife and daughter would leave, subject to timing. It would have been unsafe to decide the case on speculative alternative circumstances.
4. The Secretary of State had taken account of the claimant’s long residence and his private-life case. She was not required to recast an asylum application as a different application for leave to remain, even if a separate application might have prospects of success.
5. The claim was dismissed. The claimant was ordered to pay the defendant’s costs, not to be enforced without leave of the court, and his own costs were subject to legal assessment.

This was a first-instance judicial review in the Administrative Court. Permission was initially refused on paper but was granted on 29 July 2013 by HHJ Raynor QC.