Yesafu, R (On the Application Of) v The Secretary of State for the Home Department

Certification under section 96 of the Nationality, Immigration and Asylum Act 2002 requires a structured four-stage assessment:

1. whether the claimant received the earlier notice;
2. whether the matter could and should have been raised earlier;
3. whether there was a satisfactory reason for the omission; and
4. whether certification should be exercised as a matter of discretion.

Receipt does not require physical possession or reading of the notice. A claimant cannot avoid the statutory consequences by refusing to accept or read it. The decision-maker may assess the credibility of the explanation for late disclosure, including against the evidence as a whole. The severity of losing an appeal right does not alone invalidate certification.

The claimant sought judicial review of the Secretary of State’s refusal of his asylum and human rights claim and certification under section 96(2) of the Nationality, Immigration and Asylum Act 2002. Certification prevented an appeal against the refusal.

He argued that he had not received an earlier section 120 notice, that his later response to a fresh notice prevented reliance on the earlier omission, and that the Secretary of State had failed to consider properly his explanations for late disclosure of his bisexuality. The central issues were the meaning of receipt, the application of the four-stage approach in R (on the application of J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin), and whether the certification decision was lawful.

1. The application for judicial review was dismissed. The unlawful-detention aspect of the claim had been adjourned and was not determined.

2. The court applied the four-stage approach identified in R (on the application of J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin). The Secretary of State had to decide whether the claimant had received a previous section 120 notice, whether the matter could and should have been raised in response, whether there was a satisfactory reason for the failure, and whether it was appropriate to exercise the discretion to certify.

3. For section 96(2)(a), “received” did not mean that the claimant had physically taken the notice into his hands or read it. In ordinary language a document may be received without physical possession or actual reading. A contrary construction would allow a person to defeat the statutory scheme simply by refusing to accept a notice.

4. The claimant’s sexuality-based protection claim relied on past events and relationships which had occurred by 2013. It could and should therefore have been raised in response to the 2014 notice, and indeed the earlier 2013 notice. The later notice issued in 2016 did not represent that the earlier notices had ceased to matter. No estoppel or unfairness arose.

5. The Secretary of State was entitled to reject the claimant’s explanations based on lack of legal representation and shame or embarrassment. The explanations were general and inconsistent with his refusal to take the notice. The decision-maker was entitled to assess them against the independent credibility concerns in the asylum decision and was not required to accept the general guidance on late disclosure as applicable on the facts.

6. The contradictory passage concerning paragraph 339L of the Immigration Rules was a drafting error which was clear from reading the decision letter as a whole. The letter showed that the claim had not been accepted and that the Secretary of State had considered the relevant explanations and circumstances. She was entitled to exercise her discretion in favour of certification. The seriousness of the consequence did not, by itself, make the decision unlawful.

Not stated in the judgment.