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

Judicial review is ordinarily inappropriate where a suitable statutory appeal is available. An out-of-country appeal may provide fair, adequate and proportionate protection, despite the practical disadvantages of conducting an appeal from abroad. Fear of persecution cannot itself make an out-of-country appeal unsuitable where that form of appeal is the statutory consequence of a clearly unfounded asylum claim.

A certification decision is assessed objectively. The question is whether the claim has a realistic prospect of success. If it does, certification as clearly unfounded is irrational. The decision-maker must assess the factual substance and detail, the background evidence, credibility, partial credibility and whether the claim could fall within the relevant Convention.

The claimant, a Ghanaian national, sought judicial review of the Secretary of State’s decision certifying his asylum or humanitarian protection claim and his Article 8 claim as clearly unfounded. Permission had initially been refused because he had an out-of-country right of appeal, but permission was later granted for a substantive hearing limited to the certification challenge.

The court considered whether the statutory out-of-country appeal was an appropriate alternative remedy. It also considered, in the alternative, whether the certification decisions were irrational or unreasonable. The court addressed the claimant’s account of feared persecution in Ghana, internal protection and relocation, and his Article 8 claim based on a former partner and a half-brother in the United Kingdom.

1. Alternative remedy. Judicial review is a remedy of last resort. Where a suitable statutory appeal exists, the court will ordinarily decline to entertain judicial review unless special or exceptional circumstances exist. The relevant question was whether the out-of-country appeal offered fair, adequate and proportionate protection. Applying Secretary of State for the Home Department v R (Lim and another) [2007] EWCA Civ 773, the court held that the disadvantages of an out-of-country appeal did not make it unsuitable or exceptional. The claimant could raise his substantive points through that appeal.
2. The claimant’s fear of persecution could not, by itself, establish that an out-of-country appeal was inappropriate. That reasoning would undermine the statutory scheme under which clearly unfounded asylum claims carry an out-of-country right of appeal.
3. Clearly unfounded claims. Under section 115.1, the decision-maker must consider the factual substance and detail of the claim, the known background data, whether the claim is credible in whole or in part, and whether the accepted facts could fall within the Convention. The test is objective and capable of being reapplied by the court, as explained in R (L) v Secretary of State for the Home Department [2003] EWCA Civ 25.
4. A claim is clearly unfounded where it cannot succeed on any legitimate view. A challenge to certification is therefore a rationality challenge. If the court considers that the claim has a realistic prospect of success, the Secretary of State’s contrary conclusion is irrational. The court applied the approach in R (Bagdanavicius and another) v Secretary of State for the Home Department [2003] EWCA Civ 1605 and ZT Kosovo v the Home Secretary [2009] UKHL 6.
5. The Secretary of State had rationally assessed the claimant’s protection and internal-relocation arguments. The asylum or humanitarian protection claim was clearly unfounded. The Article 8 claim was notably weak, failed under Appendix FM and paragraph 276 ADE, and disclosed no compelling circumstances outweighing the public interest in removal. The principles in Nagri had been properly followed.
6. The judicial review claim was dismissed both because an adequate alternative remedy existed and, alternatively, because the certification decisions were rational and reasonable. The claimant was ordered to pay the defendant’s costs, assessed at approximately £7,500 including the previously ordered £640.

1. High Court (Administrative Court): Permission was refused on paper on 29 August 2013 because of the out-of-country appeal. Permission was subsequently granted on 13 March 2014 for a substantive challenge limited to certification. The claim was dismissed.