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

Certification of an asylum or human rights claim as clearly unfounded requires consideration of the claimant’s individual circumstances and the realistic prospect of success before the tribunal. The decision-maker must assess the evidence in the round, including competing medical opinions, and may take account of the limitations of an expert’s assessment. The question is not whether the claim has been finally proved, but whether it is bound to fail against the applicable legal threshold. In a suicide-risk case, Article 3 requires substantial grounds for believing in a real risk of treatment reaching the required minimum severity. The threshold is particularly high where the risk arises from a naturally occurring illness rather than treatment attributable to the receiving state. Available treatment and measures capable of managing the risk are relevant.

The claimant, a Nigerian national and foreign criminal, challenged the Secretary of State’s decision to maintain a certificate under section 94 of the Nationality, Immigration and Asylum Act 2002. The certificate prevented an in-country appeal against the refusal of his asylum and human rights claims and the refusal to revoke his deportation order.

The claimant relied principally on a psychiatrist’s opinion that he suffered severe depression with psychotic features and presented a moderate to high risk of suicide if returned to Nigeria. Two other psychiatrists had reached materially different conclusions. The issues were whether the Secretary of State had validly certified the claim and whether she had failed to consider the evidence properly or reached an irrational conclusion.

1. Preliminary issue. The application to debar the Secretary of State for failure to serve detailed grounds of defence was refused. Applying the approach in Denton v TH White Ltd (2014) EWCA Civ 906, the non-compliance was one of form rather than substance. Detailed summary grounds had already been served, there was no material prejudice, and the public interest in determining the legality of public power was highly significant.
2. Applicable certification test. A refusal to revoke a deportation order was a separate immigration decision carrying its own appeal right under section 82(2)(k) of the Nationality, Immigration and Asylum Act 2002, with an in-country right arising where the claim was founded on asylum or human rights grounds. The applicable test was whether the claim was clearly unfounded, not the fresh-claim test in paragraph 353 of the Immigration Rules. The distinction between that test and a realistic prospect of success was narrow and made no practical difference on the facts.
3. Article 3 risk. The claimant would have to establish substantial grounds for believing that return created a real risk of treatment contrary to Article 3. The threshold was particularly high where the alleged harm resulted from naturally occurring mental illness. The availability of psychiatric care and measures to manage the risk were relevant. The exceptional circumstances identified in Y (Sri Lanka) v Secretary of State for the Home Department (2009) EWCA Civ 362 were absent.
4. Assessment of evidence and outcome. The Secretary of State was entitled to consider all the evidence holistically, including the limitations of the claimant’s expert’s single assessment and the more extensive information available to the other psychiatrists. She was entitled to conclude that there was no prospect of the claimant showing that the high Article 3 threshold was met. The judicial review claim was dismissed and the injunction against removal ceased to have effect.

The judgment records that permission to bring this judicial review claim was granted by the Court of Appeal, [2014] citation not stated in the judgment. The claim was then determined at first instance by the High Court (Administrative Court).