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

Under Nationality, Immigration and Asylum Act 2002, an asylum claim and a human rights claim made together remain separate claims for certification purposes. Certification of one does not remove the in-country right of appeal relating to the other. Certification must be made through the proper process and in the proper form. Judicial review cannot challenge a certification decision that was never made. An inaccurate notice may also mean that the underlying immigration decision has not been validly determined or served.

The claimant sought judicial review of the Secretary of State’s June 2012 refusal of her asylum and human rights claims, together with an alleged certification preventing an in-country appeal. The decision letter considered both claims but expressly certified only the human rights claim, while stating that both claims had been certified. The accompanying notice similarly failed to recognise an in-country right of appeal concerning the asylum claim. The central issues were the proper construction of section 94(2) of the Nationality, Immigration and Asylum Act 2002 and whether the alleged asylum certification could be challenged when it had not in fact been made.

1. The claim for judicial review was dismissed. The decision challenged was the certification of the asylum claim, but no such certification had been made.

2. Section 94(2) of the Nationality, Immigration and Asylum Act 2002 must be read as treating an asylum claim and a human rights claim separately, even when made together. Certification of one claim prevents an in-country appeal in relation to that claim only. A construction under which certification of an entirely unmeritorious asylum claim could remove the in-country appeal relating to a potentially well-founded human rights claim would be impermissible.

3. The decision letter properly considered and certified the human rights claim, but it did not certify the asylum claim. Its statement that both claims had been certified was incorrect. The notice of immigration decision also failed to state accurately the appeal rights available in relation to the asylum claim.

4. Certification removes an important right of appeal and therefore must be exercised lawfully, using the proper process and form. Judicial review cannot be used to challenge a decision which has not been made. The court declined to determine whether a future asylum certification would be lawful, since that would be a matter for the Secretary of State’s future discretion.

5. Because the asylum decision had not been properly served with an accurate indication of the right of appeal, the claimant awaited a lawful decision and notice concerning that claim. The Secretary of State would need to reconsider the material and could, if appropriate, issue a properly made certification.

Permission for judicial review was granted by Lewis J. Interim relief had previously been granted by Foskett J. The claim was then determined at first instance by the Administrative Court.