NCN v Secretary of State for the Home Department

A failure to recognise that an asylum claimant is vulnerable may undermine a credibility assessment, but only where it could realistically affect the reasons for rejecting the evidence. Objective findings of inherent implausibility and suspicious supporting documents may make vulnerability immaterial. A suicide risk may engage Article 3 despite its high threshold where removal itself creates the risk. A pre-existing condition, worsened only by less effective care abroad, will not necessarily do so. Medical or community care may contribute to an Article 8 private or social life, but a claim based solely on inferior treatment abroad adds little to an Article 3 claim. Permission to appeal requires a real prospect of success or another compelling reason.

The appellant, a Ugandan national, entered the United Kingdom after being trafficked and claimed asylum and humanitarian protection. Her original account was rejected by an Immigration Judge in November 2011, and she did not challenge that decision.

Further representations in 2012 and 2013 were rejected by the Secretary of State as not amounting to fresh asylum or human rights claims. The representations relied principally on medical evidence concerning depression, possible post-traumatic stress disorder and suicidal tendencies. The 2013 representations also relied on Article 8.

The High Court dismissed the appellant’s judicial review claims. Beatson LJ refused permission to appeal on the papers. Briggs LJ considered the renewed oral application, concerning vulnerability, Article 3 and Article 8.

1. Application refused. The proposed appeal disclosed no real prospect of success, and there was no compelling reason to grant permission.
2. A failure to appreciate vulnerability can, in principle, undermine an Immigration Judge’s credibility assessment. That possibility depended on the actual basis of the adverse findings. Here, the findings rested on objective considerations: the account was inherently incredible, raised unanswered questions, and was supported by documents that appeared contrived. They did not depend materially on the appellant’s performance as a witness. The Joint Presidential Guideline (number 2) of 2010 therefore disclosed no realistic prospect of a different outcome (paras [13]-[15]).
3. The Secretary of State was entitled to conclude that the medical evidence did not approach the very high Article 3 threshold. The evidence indicated an existing and continuing suicidal tendency. The increased risk on return arose from the anticipated lower efficacy of medical and community care in Uganda, rather than from removal itself. That distinction was decisive on the material relied upon (paras [16]-[17]).
4. Healthcare or community care may, in an appropriate case, form part of a patchwork establishing private or social life for Article 8 purposes. Here, however, the Article 8 case consisted essentially of receiving less adequate medical care in Uganda. It added nothing material to the Article 3 case (para [18]).
5. The appellant’s predicament attracted sympathy, but sympathy did not amount to a compelling reason for granting permission to appeal. The application was refused.

• Court of Appeal (Civil Division): Beatson LJ refused permission on the papers on 24 July. Briggs LJ refused the renewed oral application: [2016] EWCA Civ 307.
• High Court, Administrative Court: HHJ Heaton QC dismissed judicial review proceedings challenging the Secretary of State’s 2012 and 2013 decisions on 17 October 2014.