Wasif v The Secretary of State for the Home Department

A judicial review application should be certified as totally without merit only where, after careful consideration, it is bound to fail. The test is distinct from the ordinary refusal of permission. A claim may advance a rational argument which the judge can confidently reject on the papers, yet still warrant an oral renewal hearing.

Certification is inappropriate where oral submissions could realistically address weaknesses identified in the papers, including points taken from summary grounds to which the claimant has had no opportunity to respond. The claimant receives the benefit of any real doubt. Reasons for certification must address the material grounds and should be given separately from the reasons for refusing permission. A TWM recording is not separately appealable.

Two appellants appealed from decisions of the Upper Tribunal refusing them permission to bring immigration judicial review proceedings on the papers and recording their applications as totally without merit.

Ms Wasif relied on new psychiatric evidence after the refusal of her protection claim. She contended that removal to Pakistan would breach article 3 because post-traumatic stress disorder created a high risk of suicide. Mr Hossain challenged the refusal of leave to remain based on his marriage to a British citizen, alleging political risk in Bangladesh and insurmountable obstacles to family life continuing there.

The appeals were listed together to determine the proper approach to TWM certification, and whether the refusals of permission should stand.

1. Both appeals were dismissed. The Court upheld the refusals of permission to bring judicial review proceedings.

2. A TWM certification under the Civil Procedure Rules or the Upper Tribunal Rules 2008 means that the application is bound to fail, as established in R (Grace) v Secretary of State for the Home Department [2014] EWCA Civ 1191. It is not an automatic consequence of refusing permission. A judge may refuse permission where a rational argument is nevertheless confidently rejected on the papers; such a case may still justify an oral renewal hearing.

3. A judge should certify only if satisfied that an oral hearing could not realistically expose an arguable basis for the claim or enable the claimant to answer identified weaknesses. This requires caution where material is confused or inadequately presented, or where summary grounds raise a point to which the claimant may have had an answer. The claimant should receive the benefit of any real doubt.

4. Reasons for a TWM refusal must address the material grounds, particularly because certification removes the renewal hearing. Concise reasons may suffice, but they must show why each material point has no realistic prospect of success. The judge should separately consider and explain the certification, even if the explanation is that the reasons for refusing permission also make the claim bound to fail.

5. A TWM recording is not itself a judgment, order, or appealable decision. An appellant may seek permission to appeal against the refusal of permission for judicial review, but cannot appeal the certification separately.

6. Ms Wasif’s article 3 claim had no realistic prospect of success. Even assuming the new psychiatric evidence cast doubt on the earlier rejection of her account, she was not returning to the authorities said to have abused her and treatment for her condition was available in Pakistan. The Upper Tribunal’s reasons were inadequate, but the refusal of permission was correct.

7. Mr Hossain’s evidence disclosed neither a realistic political-risk claim nor insurmountable obstacles to family life continuing in Bangladesh. The Appendix FM test is stringent, though practical rather than literal. General difficulties for a British spouse in relocating do not meet it. His article 8 claim outside the Rules was also unsustainable because the relationship developed while his immigration status was precarious. The Upper Tribunal’s reasons were again inadequate, but its refusal of permission was upheld.

• Court of Appeal (Civil Division): dismissed both appeals in [2016] EWCA Civ 82.

• Upper Tribunal (Immigration and Asylum Chamber): UTJ Eshun and UTJ Macleman refused permission to bring judicial review proceedings on the papers and recorded the applications as totally without merit.

• First-tier Tribunal: Ms Wasif’s earlier protection appeal was dismissed. She did not pursue a further appeal from that decision.