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

Under the Nationality, Immigration and Asylum Act 2002, whether it was reasonable to expect an asylum claim in a safe third state is an assessment for the Secretary of State, reviewable on conventional public-law grounds. The domestic two-stage test is not replaced by former EU Dublin rules, and mere transit is not enough. Certification of a human-rights claim requires an objective conclusion that it is bound to fail. At the reasonable-grounds stage of the modern-slavery process, the statutory definitions and credibility must be addressed; not every credibility issue is deferred to the conclusive-grounds stage. A claim under paragraph 353 requires a realistic prospect of success. The claim was dismissed.

The claimant, an Eritrean national, arrived in the United Kingdom by small boat, claimed asylum and was detained. His asylum claim was declared inadmissible under section 80B(1) of the Nationality, Immigration and Asylum Act 2002. His human-rights claim was certified as clearly unfounded, and later submissions were rejected as not amounting to a fresh claim under paragraph 353 of the Immigration Rules. He was subsequently removed to France under the Treaty, following an unsuccessful interim-relief application: [2025] EWHC 3289 (Admin).

Some grounds were stayed pending lead claims decided in [2026] EWHC 1742 (Admin). The remaining issues were whether the claimant had a reasonable opportunity to obtain legal advice, whether the inadmissibility and certification decisions were rational and legally directed, whether the further submissions constituted a fresh claim, and whether the negative reasonable-grounds modern-slavery decision was lawful.

Disposition. Grounds 1, 2(b) and 3 were dismissed.

1. Access to legal advice. Applying the approach adopted from R (F) v Surrey County Council [2023] EWHC 980 (Admin), the court resolved the primary factual dispute on the written evidence. The claimant knew of the detained duty advice scheme and was aware of appointments on 28 October, 4 November and 7 November 2025. He did not attend the first two and attended the third. His appointment on 10 November was genuine but occurred only a few hours before the inadmissibility decision, which was insufficient time for effective representations or an extension request. The later appointment was irrelevant. Overall, he had been given a reasonable opportunity to obtain advice.
2. Inadmissibility. The reasonableness of expecting an asylum claim in France under section 80C(4)(b) was an assessment requiring the Secretary of State’s judgment, not a precedent-fact question for the court. The court proceeded on the assumption that anxious scrutiny applied. Former EU Dublin rules and LH v Bevándorlási és Menekültügyi Hivatal C‑564/18 did not provide the governing yardstick. The decision-maker rationally applied the domestic two-stage guidance, considering credibility and reasonableness, the claimant’s time in France, available assistance, intended destination and explanations for not claiming there. The statutory discretion under section 80B(1) was adequately addressed. Section 80B(7)(b) concerned later changes of circumstances and could not retrospectively invalidate the original decision.
3. Certification. Applying R (Brown) v SSHD [2015] 1 WLR 1060, certification required an objective conclusion that the human-rights claim was bound to fail on any legitimate view of fact and law. The Article 4 duties identified in R (TDT) v Secretary of State for the Home Department [2018] EWCA Civ 1395 did not arise in a way capable of succeeding. There was no suggestion of forced labour in France, and the alleged trafficking in Libya fell outside the United Kingdom’s Article 1 jurisdiction under Secretary of State for the Home Department v AM (Vietnam) [2016] EWCA Civ 565.
4. Fresh claim. Paragraph 353 required materially different submissions which, taken with earlier material, created a realistic prospect of success. It did not apply to a protection claim declared inadmissible rather than refused. The additional material concerning the claimant’s brother, mental health and uncle did not alter the existing absence of medical support or the availability of treatment in France.
5. Negative reasonable-grounds decision. The competent authority had to apply the domestic definitions in the Slavery and Human Trafficking (Definition of Victim) Regulations 2022, rather than ECAT alone. Where forced labour was alleged, the primary question was whether there were reasonable grounds to believe that the claimant was a victim of slavery. The reasonable-grounds stage also permitted assessment of credibility. Applying R (HAM) v Secretary of State for the Home Department [2015] EWHC 1725 (Admin) and R (SM) v Secretary of State for the Home Department [2024] EWHC 1683 (Admin), the court found that the lack of detail, inconsistencies and delayed disclosure rationally undermined the account. Evidence obtained after the decision could not make it unlawful.

No appellate decision is stated. The judgment records an unsuccessful interim-relief application, [2025] EWHC 3289 (Admin) , and the stay of certain grounds pending lead claims decided in [2026] EWHC 1742 (Admin) . Permission for the remaining grounds was granted by Fordham J.