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

Certification of an asylum claim under section 96(2) of the Nationality, Immigration and Asylum Act 2002 requires more than satisfaction of the statutory preconditions. The Secretary of State must exercise the certification discretion rationally and with anxious scrutiny. Relevant circumstances may include vulnerability, trauma, difficulties in disclosure, the quality of the interview, medical evidence and the potential consequences of refusing an appeal right.

Assessment of a fresh claim under paragraph 353 of the Immigration Rules requires anxious scrutiny of the new evidence together with the earlier material, viewed in the round. Allocation to detained asylum casework is not automatically unlawful because of vulnerability or shortcomings in obtaining a Rule 35 report. Nor is remittal required where the report reasonably conveys that ongoing detention is not expected to cause further harm.

The claimant, a Nigerian national, challenged decisions refusing and certifying her asylum claim based on her alleged lesbian identity and past abuse, and refusing to treat further evidence as a fresh claim. She also challenged her allocation to Detained Asylum Casework and the handling of a Rule 35(3) medical report concerning detention and torture.

The Administrative Court considered whether the certification discretion had been lawfully exercised, whether the fresh-claim assessment was rational, whether the detained-casework allocation was unlawful, and whether the medical report had to be returned for clarification.

1. Certification. The statutory conditions in section 96(2)(a) and (b) of the Nationality, Immigration and Asylum Act 2002 were satisfied. The conclusion that section 96(2)(c) was satisfied was not unreasonable on Wednesbury grounds. However, the Secretary of State failed properly to exercise the separate discretion whether to certify.
2. The discretion required anxious scrutiny of the relevant circumstances, applying the approach in R (J) v SSHD [2009] EWHC 705 (Admin). The decision-maker had to consider matters including the claimant’s vulnerability, alleged childhood torture, difficulties in disclosing sexual identity, the absence of a timely Rule 35 report, and the confrontational manner of the asylum interview. The statement that the claimant had supplied no evidence why her claim should not be certified wrongly approached the discretion as though the burden lay on her to justify non-certification.
3. Fresh claim. The October 2017 decision under paragraph 353 of the Immigration Rules was irrational. The correct question was whether the new material, considered with the previously considered evidence and with anxious scrutiny, created a realistic prospect of success before an Immigration Judge. Errors, non-sequiturs and indications that the decision had been reached before the later evidence was considered undermined that assessment. The approach was inconsistent with R (HN & SA) (Afghanistan) v SSHD [2016] EWCA Civ 123.
4. Detention and Rule 35. The claimant’s allocation to Detained Asylum Casework was not unlawful merely because of the identified shortcomings in obtaining a Rule 35 report. The court rejected a hindsight-based challenge based on information later available. The clinician’s report reasonably indicated that ongoing detention was not expected to exacerbate the claimant’s longstanding mental-health difficulties. The Secretary of State was not obliged to remit it for an express statement on the prospective impact of detention.
5. The decisions dated 3 May and 18 October 2017 were quashed. The court declined to stipulate that any renewed refusal would carry an in-country right of appeal, since the statutory options remained for the decision-maker to consider. The defendant was ordered to pay 50% of the claimant’s costs.

The claim was brought by judicial review. On 9 November 2017, Michael Fordham QC, sitting as a Deputy High Court Judge, refused permission on several grounds but granted permission on four. This judgment allowed two grounds and dismissed two grounds.