England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th July 2002

Mr Justice Ouseley:

1. Miss Nyakonya, the claimant, is a 25 year old asylum seeker from the Democratic Republic of Congo. She arrived in the U.K. on 28^th December 1998 and claimed asylum upon arrival. Her application for asylum was refused by the Secretary of State for the Home Department in July 2000 but this decision was not notified to her until 9^th November 2000. He served a one-stop notice on her requiring her to state any additional grounds which she might have for remaining in the U.K, including any claims that her human rights had been breached by his decision. She responded by alleging that her rights under Article 3 ECHR would be breached by her return to DRC, because of the inhuman and degrading treatment which she would receive there. The Secretary of State did not respond to that allegation.
2. The claimant’s brother-in-law and his wife, the claimant’s older sister, had arrived in the U.K. in June 1997. He had also claimed asylum which the Secretary of State had also refused. Both asylum seekers appealed against the Secretary of State’s decisions and their appeals were heard together. On 26^th July 2001, the Special Adjudicator allowed the appeal of the claimant’s brother-in-law, Mr Mwalimu, who had been a legal advisor to a politically and economically active son of the former DRC President, Mobutu. The claimant’s appeal was dismissed on both asylum and human rights grounds, including a contention raised at the appeal hearing that the return of the claimant to DRC would infringe her rights under Article 8, were her brother-in-law’s asylum appeal to be successful. By a decision dated 9^th November 2001, the IAT refused leave to appeal against the Adjudicator’s decision.
3. Elias J granted permission to challenge the IAT’s decision on one ground only, namely that the IAT ought to have concluded that the Adjudicator had no jurisdiction to deal with her human rights claims until the Secretary of State had first considered and ruled upon them. Elias J described that contention as arguable, though lacking in merit. The claimant also seeks to renew her application for permission in respect of those grounds which Elias J had regarded as lacking any prospect of success; those relate to the risk to which the claimant would be subject upon her return to DRC as a failed asylum seeker, known to be related to someone who had worked for a member of Mobutu’s family and who had been granted asylum in the U.K.
4. The Secretary of State contends that these claims are academic, because on 8^th May 2002 the claimant’s solicitors wrote to the Secretary of State, asking him to consider her human rights claim afresh in the light of her brother-on-law’s successful asylum appeal and of further information as to the way in which the claimant would be at risk of inhuman and degrading treatment were she to be returned to Kinshasa. On 22^nd May 2002, he rejected that further claim and certified her claim under section 73(8) of the Immigration and Asylum Act 1999 as one made for the purpose of delaying her removal from the U.K. The claimant contends that that decision too is unlawful and although she has not issued proceedings formally, all parties wished me to treat the case on the basis that I had before me an application for permission to apply for judicial review of the decision contained in the latter of 22^nd May 2002 – which request I was willing to accede to.

Human Rights before the Special Adjudicator

5. I deal first with the ground upon which Elias J granted permission, namely that the Adjudicator had no jurisdiction to rule upon her human rights claims in the absence of a prior decision by the Secretary of State.
6. The Home Office Presenting Officer accepted the truthfulness of what Mr Mwalimu said about his own circumstances, but challenged strongly the account of persecution given by the claimant, and indeed the evidence of Mr Mwalimu to the extent that it supported her claim. The Special Adjudicator found her claim to lack credibility and he expressed his views in strong terms: he said that she “was clearly practising evasion and deceit during cross-examination and indeed was concocting her story of why she left the Democratic Republic of the Congo.” He thought that Mr Mwalimu was being untruthful in his evidence about why she left the DRC in order to assist her. The Special Adjudicator said :

“34. As stated above after considering the evidence as whole (and the doubts and problems referred to cumulatively) I found the second appellant to lack credibility as a witness. I had carefully considered the case of Chiver as urged to by Ms Naik, but found that the appellant’s lack of credibility affected the core of her story. She failed to satisfy me that she had the problems in the Democratic Republic of the Congo that she claimed. She failed to satisfy me to the standard of a reasonable degree of likelihood that she had ever been arrested, detained or mistreated. She failed to satisfy me that that she had been a slave to the Rwandan leader or anyone else. She failed to satisfy me that she had been of interest to any of the authorities in the Democratic Republic of the Congo. I was satisfied that she had concocted a story of problems, so as to be able to join the first appellant in the UK.

35. I accepted to the low standard that the second appellant had spent time staying with her sister, the first appellant’s wife, but not that she was in any sense adopted as a part of the first appellant’s family. I saw no reason why the second appellant would be of interest to the authorities in the Democratic Republic of the Congo if she was returned. The first appellant’s wife had been released and, I was satisfied from the evidence, the second appellant had no problems there before leaving.

36. I had not found that the appellant would be persecuted in her home area and therefore no question arose of internal flight or whether or not relocation would be unduly harsh.

37. Having considered the evidence as a whole I found myself not satisfied, to the standard of a reasonable degree of likelihood, that the appellant had previously, or had at the time of the hearing, a well founded fear of persecution for a convention reason if returned to the Democratic Republic of the Congo. She was not a refugee.”

7. The Special Adjudicator then dealt with human rights. He said incorrectly that no additional grounds had been raised by either appellant, but continued, saying that Ms Naik, who appeared before him for both appellants, had raised human rights issues which he could consider by virtue of section 65 of the 1999 Act. He concluded that the return of Mr Mwalimu to DRC would infringe his Article 3 rights. He then dealt with the claimant:

“39. In the case of the second appellant the opposite applies. For the reason given above I considered that there were not substantial grounds for believing that there was a real risk that the second appellant would be ill treated if returned to the Democratic Republic of the Congo. Her Article 3 rights would not be breached.

40. Regarding Article 8 I saw no reason to conclude that there were substantial grounds for believing that there was real risk that the second appellant’s ‘physical and moral integrity’ would be harmed if she was returned. Although she was a single woman I was not satisfied that there were substantial grounds for believing that she did not have family in the Democratic Republic of the Congo to whom she could turn.

41. No evidence was given of the second appellant having significant elements of private life in the UK.

42. It was claimed that she was a part of the family unit in the UK. As stated above I accepted that she had spent time with the first appellant’s wife, her sister, but not that she was in any sense adopted by that family. After her arrival in the UK family life was however established. There were insurmountable obstacles to the whole family going to the Democratic Republic of the Congo and therefore family life would be interfered with if the second appellant was returned.

43. I found that the second appellant’s return was in accordance with the law and was for the legitimate aim of immigration control for the purposes of avoiding disorder. Such controls were necessary in a democratic society. The decision was in my view not disproportionate. I was not satisfied that there was any real family reason why the second appellant needed to be in the UK rather than in the Democratic Republic of the Congo. She had one sister in the UK but 3 brothers and 1 or 2 sisters in the Democratic Republic of the Congo. Her mother was there. I was not satisfied that there were insurmountable obstacles to her joining her family in the Democratic Republic of the Congo. The evidence suggested to me that the second appellant was attempting to join her family in the UK simply out of preference. That I found was not a sufficient reason to override the need for applying normal immigration controls. I therefore found that there was no lack of respect for the second appellant’s family and private life.

44. I had not been specifically urged to find that there would be lack of respect for the second appellant’s home or correspondence nor did I conclude that there would be. I found that return would not breach her Article 8 rights.

45. I was only asked by Ms Naik to make findings regarding Article 3 and Article 8. However I asked myself whether or not any other rights of the second appellant under the Human Rights Act would be breached by her return but concluded that they would not be.”

8. In her grounds of appeal to the IAT, she contended that there was a risk to her of persecution on her return to Kinshasa as a relative of a Mobutu collaborator, who had been recognised as a refugee, and that the experience of her sister, who had been detained but then released after Mr Mwalimu’s departure showed a degree of risk to her on return. She also argued that the procedure adopted for dealing with her human rights claim had been unfair and unlawful.
9. The IAT rejected the application for leave to appeal and said in relation to the human rights point:

“So far as the human rights claim is concerned, the adjudicator had jurisdiction to deal with this and he was urged to do so by the applicant’s counsel, no objection being raised by the Home Office. He has correctly dealt with this. His conclusions are valid.”

10. Section 65 of the 1999 Act deals with the human rights jurisdiction of a Special Adjudicator and provides:

“(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the Special Immigration Appeals Commission Act 1997.

(2) For the purposes of this Part, an authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.

(3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant’s entitlement to enter or remain in the United Kingdom, acted in breach of the appellant’s human rights.

(4) The adjudicator, or the Tribunal, has jurisdiction to consider the question.

(5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant’s human rights, the appeal may be allowed on that ground.”

11. Section 74 deals with the “one-stop” procedure, and in section 74 (4) provides:

“(4) The decision-maker must serve on the applicant and on any relevant member of his family a notice requiring the recipient of the notice to state any additional grounds which he has or may have for wishing to enter or remain in the United Kingdom.”

12. Section 74 (7) (b) provides:

“(7) A statement required under this section must –

(c) if he claims that an act breached his human rights, include notice of that claim.”

13. Section 77 deals with “one-stop” appeals, and applies to asylum appeals by virtue of section 77 (1) (a). Section 77 (3) and (4) provide:

“(3) In considering –

(a) any ground mentioned in section 69, or

(b) any question relating to the appellant’s rights under Article 3 of the Human Rights Convention,

(c) the appellate authority may take into account any evidence which it considers to be relevant to the appeal (including evidence about matters arising after the date on which the decision appealed against was taken).

(4) In considering any other ground, the appellate authority may take into account only evidence –

(a) which was available to the Secretary of State at the time when the decision appealed against was taken; or

(b) which relates to relevant facts as at that date.”

14. The claimant’s submissions on this ground primarily related to the way in which her actual or potential claim under Article 8 ECHR had been dealt with. Ms Naik told me that Article 8 considerations were raised by the claimant before the Adjudicator because questions had arisen as to the effect of various potential decisions on her claim; family life in DRC and in the UK were raised as part of an Article 8 claim, and the Adjudicator was asked to make findings of fact on it. She had not in fact consented however to all the Article 8 points being dealt with, and in particular not those which arose in consequence of the Adjudicator’s decision to allow the appeal of Mr Mwalimu and to accord him refugee status. She had only being responding to the submissions on behalf of the Secretary of State, and because it would have been discourteous to the Adjudicator not to have responded to issues which he too had raised for consideration. Ms Naik also said that the claimant’s sister had not been called to give evidence because she did not know what was in dispute. At the stage of the hearing before the Adjudicator, Ms Naik could not know the outcome of Mr Mwalimu’s appeal and accordingly she was not in a position to deal with all the issues to which that might give rise.
15. Ms Naik submitted that the jurisdiction conferred by section 65 on Adjudicators could only apply to appeals from decisions already reached by the Secretary of State, and he had not reached any decisions on any Article 8 claim by the claimant here. Indeed the Secretary of State had not even responded to the Article 3 claim raised by the claimant in her Statement of Additional Grounds following the service of the One-Stop Notice.
16. These Article 8 issues could only properly be considered by the Secretary of State following an application by the claimant for leave to remain as the dependant of Mr Mwalimu once his refugee status had been confirmed. This was a matter which went to the jurisdiction of the Adjudicator and so it was irrelevant whether Ms Naik had or had not consented to the matter being dealt with in a particular way. Accordingly, the conclusion of the IAT involved a procedural misdirection.
17. In support of that approach, Ms Naik relied upon an extract from a decision of the IAT in Pardeepan v SSHD 2000 INLR 447, paragraph 24:

“24. As is well known, the Secretary of State has directed himself in many such cases, that he has already had regard to Article 8. In those circumstances, as it seems to us, the adjudicator is entitled and indeed is bound to consider Article 8 because the Secretary of State himself has considered it. There is then nothing to be gained from a fresh application because, as we say, human rights have already been considered, and in such cases, as now, following the decision of the High Court in ex parte Ali [2000] INLR 89, we think that it is clearly appropriate for this issue to be decided. ”

18. She also referred to the Immigration and Asylum Appeals (One-Stop Procedure) Regulations 2000 No.2244. Although she accepted that neither these Regulations nor any other legislative provisions imposed any express requirement on the Secretary of State to respond to a Statement of Additional Grounds following a One-Stop Notice, the notes in the form of Notice prescribed by those Regulations, and indeed by the later Amendment Regulations, 2000 No 867, include the statement that “The decision will be reviewed in the light of what you say.” The context for that is important:

“The notice of decision takes into account the reasons you gave for wishing to enter or remain in the United Kingdom. You are now required to state any reasons you think you have or may have for staying in the United Kingdom which you have not previously disclosed: these will be your “additional grounds”. The decision will be reviewed in the light of what you say. It is in your own interest to now disclose all your grounds for staying in the United Kingdom. But you should not make false claims: do not, for example, apply for asylum unless you have genuine reasons for believing that you qualify in the terms of the 1951 Convention.”

19. Mr Hunter for the Secretary of State emphasised the obligation, originating in section 74(4), to state any additional grounds which an appellant thinks he “may have” and that “all your grounds” should now be disclosed. The form prescribed in the 2000 Regulations also states:

“If you make a valid appeal and if the decision is maintained in the light of your additional grounds, those grounds will form part of your appeal so long as they could have done so if you had disclosed them earlier. In that case you will be told why your additional grounds were not acceptable and given the chance to add to your grounds of appeal before your papers are sent to the adjudicator.”

20. Although that phraseology does not appear in the 2001 Amendment Regulations, Ms Naik referred me to a letter of 9^th March 2001 from the Home Office to the President of the IAT apparently referring to this amendment to the One-Stop Notice form. The terms of that letter suggest, according to Ms Naik, that the Home Office had in practice tried to respond to additional grounds, but had found it frequently difficult to do so because of the vagueness of the grounds with which they were so often faced. It may be, suggested Mr Hunter, that this reference to responding to additional grounds was in fact a reference to responding before the Adjudicator rather than being a reference to responding at any earlier stage.
21. Ms Naik said that had the Secretary of State responded here, even though Article 8 had not been raised, he would have had to consider her Article 3 claim in the context of her return to DRC as the sister in law of a Mobutu associate who had refugee status, but the Claimant did not even know the case she had to meet on that ground.
22. Ms Naik drew attention to the provisions of section 77 (3) and (4), which differentiate between the way in which Article 3 and other Articles are considered on appeal to the Adjudicator, by way of support for her submission that Article 8 matters could not have been raised before the Adjudicator unless the evidence in question, in particular the outcome of her brother in law’s appeal, was available to the Secretary of State at the time when he took his decision on her asylum application, or related to the relevant facts as at that date. The claimant’s brother in law’s successful appeal did not fall into either category.
23. According to Ms Naik, the Adjudicator should not have dealt with the claimant’s Article 8 rights; her claims under both Articles 3 and 8 should have been considered first by the Secretary of State upon an application made after her brother in law’s appeal had been allowed. The Secretary of State would then have been in a position to look at all the relevant evidence and to reach a considered conclusion on both Articles together, interwoven as the relevant factors were. As it was, the Secretary of State’s decision on 22^nd May 2002 drew upon the conclusions of the Adjudicator, which were made without her having a full opportunity to put forward her case; and at that stage she had not known the nature of the Secretary of State’s case against her. For that reason this ground of challenge had not been rendered academic by his reconsideration of her case in his decision of 22^nd May.
24. Mr Hunter for the Secretary of State submitted that the letter of 22^nd May 2002 did indeed render this particular ground of challenge academic. He had fully considered and determined her Article 3 and 8 claims based on all the information which she wished to place before him and there was no point now in proceeding with the one ground upon which she had been granted permission to apply for judicial review.
25. He further submitted that section 65(3) and (4) of the 1999 Act made it quite clear that the Adjudicator has jurisdiction to consider human rights claims which arise before it, whether or not the Secretary of State has previously considered or ruled upon any such claim. Section 74(4) assisted his approach because it required the Statement of Additional Grounds to include grounds which an applicant “has or may have” for remaining in the U.K. This phraseology was apt to cover grounds arising contingently on the success of a relative, as here.
26. Section 77 did not provide a bar to the Adjudicator considering the effect on the claimant of a successful outcome to her brother in law’s appeal, because either that outcome was not “evidence” within section 77(4)(a), or if it was, it was evidence relating to relevant facts as at the date of the decision of the Secretary of State, within section 77(4)(b). In any event, the Article 3 claim was not subject to any such restriction in the light of section 77(3), and the relevant factors were interwoven with the Article 8 factors. There was no basis for criticising the Adjudicator’s decision as a matter of discretion because the claimant sought the determination of her Article 8 claim and it was sensible and fair for him to do so. She had put before him all necessary matters. The decision of the IAT in Pardeepan was irrelevant to a human rights point arising after 2^nd October 2000 - and here the date of notification of the decision under appeal was 9^th November 2000. It was that date rather than the actual refusal date which mattered.
27. I do not consider that the claimant’s submissions in relation to the procedure which was followed in relation to her human rights claims are correct.
28. First, the Adjudicator has jurisdiction to consider any question which arises on an appeal as to whether the Secretary of State’s decision would breach an appellant’s human rights. The effect of section 65(3), (4) and (5) is very clear; jurisdiction is expressly conferred in very wide terms and an appeal can be allowed if the authority concerned has acted in breach of an appellant’s human rights. There is no statutory provision which requires the Secretary of State to have considered the claim first in order to found the jurisdiction of the Adjudicator. The very language of section 65(3), in conferring jurisdiction refutes that proposition: it refers to questions arising in proceedings on an appeal; that is language consistent only with a jurisdiction to deal with questions arising on appeal whether or not they have been the subject of any prior decision by the Secretary of State. Indeed, any other interpretation would run clean counter to the purpose of the one-stop notice provisions which are intended to enable a speedy decision to be reached as soon as possible on the totality of an applicant’s claim and to avoid procedural delay. It is inconceivable, where an Adjudicator is satisfied on the evidence that an appeal should succeed on a human rights ground not raised before the Secretary of State, that he should have no jurisdiction to deal with it, and would have to remit it for the Home Office to consider, especially if the Home Office had already said all it could say to the Adjudicator. Had the claimant here succeeded in the submissions which she made to the Adjudicator, the issue of jurisdiction would simply never have arisen on either side. The Adjudicator therefore had jurisdiction to deal with any human rights point which arose in the appeal, whether or not it had been the subject of a Statement of Additional Grounds, or a response from the Secretary of State, or had arisen unheralded as a result of the development of the evidence or argument on an appeal. In each case, the question “arises” on the appeal.
29. Pardeepan is of no assistance to the Claimant: it does not deal with the effect of section 65, after 2^nd October 2000. The citation in paragraph 18 above has to be seen in the context of procedures no longer of relevance after 2^nd October 2000; it is of no relevance to the interpretation of section 65. There is no relevant jurisdictional distinction to be drawn between a claim raised in a Statement of Additional Grounds to which the Secretary of State has not responded, a claim not raised until the hearing of the appeal before the Adjudicator and a claim to which the Secretary of State has responded.
30. Second, the language of section 74(4) is also of some assistance to the Secretary of State: the obligation to include in a Statement of Additional Grounds, grounds which an applicant “has or may have” is clearly apt to cover not just grounds upon which the applicant is uncertain for evidential reasons but grounds which it can properly be anticipated by him may arise. Here, the claimant knew full well of her brother in law’s appeal and of her assertion as to a family life with him in DRC and the U.K. which depended on his success. The Adjudicator was entitled to deal with a ground which, albeit contingent, was becoming increasingly immediate before him. The question had arisen. It should have been in the Statement of Additional Grounds; its omission cannot be a bar to jurisdiction.
31. Third, I am quite satisfied that there is nothing in the prescribed forms for one-stop notices which alters that position. The passages relied on by the claimant are only in the Notes and do not constitute any obligation on the Secretary of State to respond to Statements of Additional Grounds. I do accept that the Notes to the forms held out the prospect that a response would be provided before an appeal reached the Adjudicator and that the change in the form in the Amendment Regulations reflects an inability to do that for whatever reason. But that sensible aim is simply not good enough to found a bar to the jurisdiction of the Adjudicator, as the claimant submits. The language of section 65 governs the point.
32. Fourth, I do not consider that section 77 of the 1999 Act supports the claimant’s position, that the Adjudicator could not consider the human rights claim under Article 8 because the successful outcome of her brother in law’s asylum appeal was “evidence” not available to the Secretary of State when reaching his decision. This argument is, of course, not available to the claimant in respect of the consideration by the Adjudicator of her Article 3 claim. “Evidence” is material which proves or tends to prove a particular contentious point; the issue here was whether or not the claimant’s rights under either Article 3 or 8 would be infringed upon or because of her return her return to DRC. I regard it as unduly narrow an approach not to treat the successful appeal of her brother in law as being “evidence” which could prove that her rights would be infringed for the purposes of her claim under Article 8. A distinction between evidence which is relevant to prove a point and a new factor which it is relevant to take into account in the assessment of the risk to the claimant, is one which smacks of unwarranted refinement in the context of the efficient and speedy determination of asylum and human rights based claims for leave to stay in the U.K. True it is that the outcome of the appeal of Mr Mwalimu was unknown to the Secretary of State at the time when he took the decision which was the subject of the appeal to the Adjudicator and thus, for the purposes of section 77(4)(a) in relation to the Article 8 claim, it was not “evidence” available to the Secretary of State at the time when he made his decision. However it is plainly “evidence” which relates to the relevant facts as at that date for the purposes of section 77(4)(b).
33. Indeed, if that approach is wrong, the alternative approach would not help the claimant: one would look to what material was available to the Secretary of State; it appears likely that it was much the same as that which eventually underlay the conclusions of the Adjudicator. On that basis all the evidence was available to the Secretary of State when he took his decision; all he lacked was the differing conclusion of the Adjudicator upon that same material. That conclusion is not of itself “evidence” – the evidence is the underlying material.
34. Of course, section 77 imposes no such constraint on the Adjudicator in relation to Article 3 claims, and the interwoven nature here of Article 3 and Article 8 claims, means that any conclusion which the Adjudicator reached, on Article 3, specifically raised by the claimant in her Statement of Additional Grounds, would be very relevant to any conclusion which the Secretary of State might reach on her later Article 8 claim.
35. Fifth, I am quite satisfied that the Adjudicator exercised the jurisdiction conferred upon him fairly and properly. I accept that an Adjudicator in the exercise of his jurisdiction has power to adjourn where that is necessary in the interests of justice in order to enable either party to deal with an issue which it could not reasonably have anticipated. However, taking her Article 3 claim first, the claimant had expressly raised her Article 3 rights which raised the effect upon her of her return to Kinshasa as a failed asylum seeker who would also be the sister in law of a close Mobutu associate. That latter disadvantage was something under which she laboured whilst in DRC and upon her departure from DRC and, whatever happened to her brother in law’s appeal, was a disadvantage which would accompany her back to Kinshasa. Those issues were relevant both to her asylum and to her Article 3 claims. Her Statement of Additional Grounds simply refers to her asylum claim as the basis for her Article 3 claim. She raised nothing additional before the Adjudicator to distinguish the claims. Moreover, the critical experiences which she claimed to have had in DRC and which were the foundation for her Article 3 claim both on leaving DRC and on her return as well, were rejected by the Adjudicator as lacking in credibility. The difficulties in her way stem from that fact. However, in so far as she had an Article 3 claim which could survive the rejection of her main claim as untruthful, it was incumbent on her to put it forward. She did not suggest to the Adjudicator, as she could easily have done, that the change in her brother in law’s status was of itself something which would have any impact at all on her difficulties upon return to Kinshasa. This was the only new aspect of her case which could be said to have arisen before the Adjudicator, and it could readily have been anticipated by her. All her brother in law’s other circumstances were part of her asylum or Article 3 claim. She did not suggest either that simply as a failed asylum seeker she would for that reason face persecution or a breach of her Article 3 rights upon return.
36. Sixth, her Article 8 claim, which was wholly dependant on the success of her brother in law’s claim, was raised at the hearing before the Adjudicator. There was no reason why, related as it was to her brother in law’s appeal which she knew was pending, it could not have been raised before the appeal, or indeed in the Statement of Additional Grounds. I did not find it easy to understand from what Ms Naik told me whether she had raised any reservation at all before the Adjudicator as to his dealing with the matter. This is because as I understood what she was saying, she first said that she had not raised such an objection but later said that she did or may well have done. I do not wish to be critical of Counsel because it is easy to see how reservations may have been harboured and perhaps given a limited or tentative voice, but may not have been so firmly expressed as to call for explicit consideration or even noting by the Adjudicator. It would have been much better, had it been desired to take issue with what the Adjudicator had said in his decision about what happened during the appeal, for there to have a witness statement which covered those issues and which could have been responded to by the HOPO for example.
37. I see no reason not to accept what is said by the Adjudicator in his decision in the light of all the material. Certainly there does not appear to have any clear objection raised by Ms Naik to the course of action followed by the Adjudicator. I consider it obvious that an Article 8 case was pursued by the claimant based upon the obviously imminent success of her brother in law, whoever it was who initiated the discussion. That would have been the necessary foundation of her claim to family life with him in the U.K. It may well have been seen as a potentially positive avenue for this claimant to pursue once it had been raised and accordingly, whatever reservations may have been harboured, a tactical decision was made on behalf of the claimant not to hinder it by pursuing an objection or seeking an adjournment to call other witnesses, expressing thereby doubt as to the truthfulness of the appellants.
38. The Adjudicator considered Article 8 in the context of her physical and moral integrity in paragraph 40 of his decision, but he also considered it in the context of a successful asylum appeal by her brother in law, and so the claimant would have been well aware of the contingent context in which this discussion of Article 8 was being conducted. It appears from the decision of the Adjudicator that it was during the course of the hearing that the Home Office Presenting Officer in effect conceded the brother in law’s claim. In paragraphs 13 to 15 of his decision, the Adjudicator points out that the HOPO said that she did not wish to raise a credibility issue regarding his claim, nor to take issue with the documents which he produced, and she invited the Adjudicator to decide his appeal as he saw fit. As the Adjudicator said, the lack of adverse submissions amounted to something very similar to a concession of the appeal. This was not a concession she made in relation to the claimant, or indeed in relation to her brother in law’s evidence about her. Accordingly, even at the appeal, the claimant would have known the basis upon which her Article 8 claim was being considered by the Adjudicator and indeed by her advocate, i.e. that her brother in law’s appeal would succeed.
39. I have also been unable to discern any point which the claimant was unable to make before the Adjudicator as to her relationship to her sister or brother in law. It was suggested to me by Ms Naik that there was some further evidence in particular from her sister which the claimant would have wished to produce had she been aware of the way the appeal would proceed. However, no such point was made to the Adjudicator and no adjournment was sought to obtain any such evidence. Moreover, there was no reference to any such evidence in the Grounds of Appeal to the IAT and the claimant did not identify any point which she either tried to make or wished to make but was unable to because of the procedure adopted. Indeed, there is no reference to any such evidence in the application dated 8^th May and I would have expected there to have been at least some indication as to what that evidence might be, had there been anything of significance in that point.
40. The fallacy running through the claimant’s arguments is the notion that the applicant needs to know the case he has to answer before he can be expected to gather and present the material to justify his actual and potential grounds for seeking to stay in the UK. In reality, it is he who has to provide the material to make out his case. Of course, there may be circumstances, e.g. if a particular and substantial new point is raised against him which he could not reasonably have anticipated, in which the Adjudicator would have to consider an adjournment. However, an applicant’s case is not simply the rebuttal of what the Secretary of State may say; it is fundamentally for an applicant to state and prove his case to the appropriate standard.
41. Elias J concluded that the point upon which he had granted leave was lacking in practical merit. I have concluded that it also lacks legal merit and I dismiss the application for judicial review.

The renewed grounds of challenge

42. The claimant complains about the assessment of risk on her return to Kinshasa as a failed asylum-seeker, sister in law of a close adviser to an important Mobutu family member. This assessment applied both to the risk of persecution upon return and also to her claims under Articles 3 and 8. Paragraphs 35 and 36 of the Adjudicator’s decision were criticised in particular because they showed a failure to recognise that her sister had been persecuted as the wife of a Mobutu associate and accordingly failed to recognise that she too was at risk of persecution for a not dissimilar relationship. She also complained about the conclusion that she had had no family life with her sister and brother in law in DRC.
43. These points were rightly rejected by the IAT in refusing leave to appeal. The decision of the Adjudicator was wholly justified and Elias J was entirely correct to reject them as points with no prospects of success.
44. The essential feature of the submissions on the assessment of the risks which the claimant might face on return to Kinshasa was the reliance placed on the material furnished to the Secretary of State for the purpose of the decision which he reached on 22^nd May 2002, and which the claimant also seeks permission to challenge. It is easier to consider all those points together under that head.

The challenge to the decision of 22^nd May 2002

45. Although the claimant has not lodged any Form N461 in respect of her challenge to this decision and there are obvious procedural and administrative reasons why that should be done, no point was taken by the Secretary of State in relation to that. He was sufficiently well aware of the points to be made from the amended grounds. No issue of delay or of notification to third parties arises and I am prepared to consider the grounds in those circumstances. Should the matter be taken further, it may be necessary to consider whether or not any Form N461 should be lodged or some other document be taken as a Form N461.
46. The claimant seeks to challenge both the rejection of her application for leave to remain in the United Kingdom on the grounds that her removal to Kinshasa would breach her human rights, and the decision to certify her case under section 73(8) which has the effect of preventing her appealing to the IAT. The certificate was issued on the basis that the claimant had no legitimate reason for making the application and did so for the purpose of delaying her removal. Her principal challenge is to the certificate.
47. Sections 73 (7) and (8) provide:

“(7) Subsection (8) applies if, on the application of the appellant, an immigration officer or the Secretary of State makes a decision in relation to the appellant.

(8) The immigration officer or, as the case may be, the Secretary of State may certify that in his opinion –

(a) one purpose of making the application was to delay the removal from the United Kingdom of the appellant or any member of his family; and

(b) the appellant had no other legitimate purpose for making the application.”

48. No appeal can be brought against a decision so certified; section 73 (9). Judicial review is the only avenue of challenge.
49. Her application was contained in a letter from her solicitors dated 8^th May 2002, some three months after Elias J granted permission to apply for judicial review and shortly before the hearing of her case. The Treasury Solicitor was unwilling to agree to an adjournment in order for the procedural formalities for judicial review to be completed.
50. The letter emphasised that the claimant would be at risk on return to Kinshasa of interrogation and detention as the sister in law of a refugee who had been granted asylum, because of his close Mobutu connections. No particular point was made about her position simply as failed asylum seeker. Both Articles 3 and 8 were relied on; it was also argued that a case which did not quite satisfy either Article 3 or 8 taken in isolation, could satisfy Article 8 when looked at in the round. A further Report from the UNHCR was relied on; it post dated the refusal of leave by the IAT. This Report dated 20^th November 2001 was not written for the purposes of this particular claimant but appears to have been written by someone in the London office to the Devon Law Centre in connection with another individual. Nonetheless it starts by making some general points upon which Ms Naik relied:

“UNHCR is not opposed to the return of failed asylum seekers to the DRC insofar as they have had access to a full and fair hearing. However we would urge that an individual approach be taken on the basis of the circumstances of each case and with regard to the ever changing political and security context of the DRC.

According to information available to UNHCR, agents of the security services frequently interrogate Congolese returning to Kinshasa from abroad, particularly those who are known to have sought asylum. UNHCR is aware of instances where interrogation at the Airport has been followed by arbitrary detention and serious ill treatment by DRC security agencies. If the returnee is not already known to the DRC authorities, there is a strong likelihood that were he to be returned to Kinshasa, his background would be revealed in the course of interrogation upon arrival.”

The identity and circumstances of the individual returnee referred to were not capable of ascertainment from the Report, because it was written in connection with an individual whose circumstances were known to the recipient.

51. This Report was contrasted by Ms Naik with the 1998 UNHCR Guidelines, as to those at risk on return to DRC referred to in the October 2001 CIPU Report, which did not include among its categories of those at risk, people who were failed asylum seekers. The 20^th November 2001 Report should be regarded as more up to date.
52. There was also a Report from Erik Keenes dated 17^th June 2001; again this dealt with a particular individual but set concerns for him in the context of critical food needs in DRC. It appears that only part of the Report was made available to the Secretary of State and to the Court. The purpose of referring to that Report in the letter of 8^th May was to seek to persuade the Secretary of State to allow the claimant to remain as the dependant of a refugee, outside the Immigration Rules.
53. Ms Naik referred me to the IAT decision in Mjalti v SSHD 1^st February 2002 in which the need for information on human rights matters as at the date of removal was emphasised.
54. The Secretary of State’s reply emphasised the comment in the most recent Report from the UNHCR London office that it was not opposed to the return of failed asylum seekers to DRC insofar as they had had access to a fair and full hearing. It also pointed out that the Adjudicator had had background material available to him when reaching his decision, which he had taken into account. It referred to the Adjudicator’s conclusion in relation to the Article 3 claim, that her rights would not be breached.
55. In dealing with the application for leave to remain as a dependant of a refugee, the letter pointed out that the claimant was 25 years old, and that her mother and other siblings lived in DRC. It referred to the Adjudicator’s conclusion that there were no insurmountable obstacles to her joining them in DRC and that she was only trying to join her sister in the U.K. out of preference. It expressed reservations about the 17^th June 2001 Report because of its age and the problems of generalising from a Report compiled for a particular individual. The letter continued:

“The CIPU report which your client relies on was considered by the Adjudicator who did not accept your client would be at risk if returned to the DRC.

The Secretary of State disagrees with your client’s contention that she is entitled to a fresh human rights appeal. Your client has already had the benefit of a human rights appeal in which she raised the same arguments that are being raised in your letter dated 8 May 2002. Although the facsimile from the UNCHR dated 20 November 2001 was not available to your client at the time her appeal was heard, the Secretary of State would like to point out that the UNCHR does publish country report information on an ongoing basis, which would have been available to your client at the time of her appeal. Your client mentions that the Secretary of State should not certify her claim under S73 of the 1999 Act because she could not have made her application for leave to remain as a dependent of her brother-in-law before he was granted refugee status. The Secretary of State’s position is that regardless of the timing of your client’s application for leave to remain, the outcome would be unsuccessful. The reasons for this are the fact that your client’s mother and siblings remain in the DRC and your client’s age.

In light of the circumstances of your client’s particular case, the Secretary of State considers that is actions are proportionate to the social need being fulfilled. He does not therefore accept that the decision to proceed with your client’s removal from the United Kingdom would breach Article 3 and/or Article 8.”

56. It concluded by rejecting the application and certifying it under section 73(8).
57. The claimant sought to use the UNHCR material in two ways: first, it was said to show that the decision of the Adjudicator was premature and had the course of decision making followed the path contended for by the claimant, it would have been taken into account by the Secretary of State without any prejudice having been caused by the comments of the Adjudicator; and second his decision, particularly in the absence of the prejudice caused by the Adjudicator’s comments, had failed to reflect the changing concerns about the return to DRC of those in the claimant’s position.
58. Mr Hunter for the Secretary of State submitted that this revised claim was hopeless: the human rights claim in so far as it had already been considered by the Adjudicator and IAT had been held by Elias J to have been rejected on grounds which were legally unchallengeable. It was necessary to remember in considering what the claimant had to say that she had not been regarded as a credible witness. Moreover, UNHCR material had been available to the Adjudicator and to the Secretary of State throughout their deliberations and his approach to the new material was justifiably sceptical. Mr Hunter referred to the observations of the IAT in its starred decision in Slimani V SSHD 12^th February 2001, in which it deprecated references in cases to reports which had not been prepared for those cases, unless the conclusions were stated to be of general application and the author was content for reliance to be placed on it at the time of usage. The Secretary of State was entitled to weigh and reject any expert view on the same basis as was the IAT. On the facts, the conclusion that the claims were unjustified was obviously correct. It was all very well Counsel referring in argument to problems of travel in DRC to where her mother and siblings lived, but that had not been part of her application to the Secretary of State; nor had she said that the mere fact that she would be returning as a failed asylum seeker would put her at any risk of a breach of her Article 3 or 8 rights.
59. I do not consider that there is any merit in this challenge. It is worth noting how limited were the additional submissions to the Secretary of State: they referred to the fact that the claimant would be returning to Kinshasa as a failed asylum seeker who was related by marriage to a Mobutu associate, which was what had been raised before the Adjudicator. Her brother in law’s refugee status had been anticipated before the Adjudicator. The only additional material on risk was the short Report dated 20^th November 2001; there was no new evidence or detail as to the family life which the claimant said she had enjoyed with her sister and brother in law either in DRC or after arrival in the UK, or as to any disproportionate effect which her return to Kinshasa would have upon any such life; the poor quality of life for most of the populace of DRC was touched on and reference was made to the absence of anyone to provide for her but her family in DRC did not warrant a mention and she is 25 years old. There was no suggestion that she would have any difficulty reaching them.
60. The background information available to the Adjudicator included the 1998 Guidelines and the Secretary of State in his later decision had the CIPU Report of October 2001 which referred to the policy of returning failed asylum seekers only to Kinshasa which was firmly in government control and in respect of which there was no evidence to support the assertion that failed asylum seekers were subject to persecution; paragraph 5.29. This Report also referred to the ill-treatment to which the wives of high-ranking officers, who were suspected of involvement in the plot to kill President Kabila, were subjected because of their relationship to their husbands. The 1998 UNHCR Guidelines as to those at risk of persecution on return to DRC on account of their association with the former regime were included in the 2001 CIPU Report as being up to date; they identified political allies and Mobutu family members and close collaborators, especially from two particular areas. It was not asserted that the claimant came from those areas and she did not fall within any of those categories identified as being at risk. Failed asylum seekers did not then constitute of themselves a category at risk.
61. The claimant submitted that the material produced to the Secretary of State with the letter of 8^th May from the London office of the UNHCR showed a different appraisal of risk for failed asylum seekers such as the claimant. But that is simply wrong: the 20^th November 2001 document points out in its general comment that there is no objection to the return of failed asylum seekers. There was only a limited change in the 20^th November 2001 Report taking it at face value. Failed asylum seekers had not become a category at risk; their individual circumstances had to be carefully examined. The individual circumstances of this asylum seeker had been carefully examined. The fact of an unspecified number of instances of detention and serious ill treatment referred to in the 20^th November 2001 Report, has to be set against that general picture. That Report does not add to the categories at risk or enlarge those identified. At the very least, the Secretary of State’s approach to it is a perfectly tenable one.
62. The Secretary of State was entitled to draw upon the Adjudicator’s conclusions as to her credibility in the asylum claim when assessing the reality of the risks, whether of persecution or of breaches of her human rights, to which she would be subject on return. There was a very high degree of overlap between them before the Adjudicator. The risks to which she might be subject on return because of her relationship to Mr Mwalimu cannot be separated from the treatment to which she untruthfully said she had been subjected in DRC as his sister in law. The only additional factor now was his new found refugee status which the Adjudicator had plainly anticipated. The Secretary of State was entitled to regard her as one who would be of no extra interest on that account, in view of his legitimate acceptance of the Adjudicator’s conclusion that she had not been ill-treated and had been free to move, her brother in law’s activities notwithstanding. The distance between the claimant’s credibility and the “objective” fact of her relationship to Mr Mwalimu, his past and his status, which Ms Naik sought to create, does not in reality exist for the purposes of assessing risk: all of those facts, save his actual refugee status in the UK existed in DRC before her departure and where she was found not to have been at risk.
63. The Secretary of State was also entitled to draw upon the conclusions of the Adjudicator in relation to the extent of family life between the claimant and her sister and brother in law in DRC. The Adjudicator had heard all the evidence which the claimant could place before him; there was no suggestion in the letter of 8^th May that there was anything more of substance which the claimant could say and nothing more which was in fact said. The same applies to the claim to family life in the U.K. after the claimant’s arrival here. Those conclusions are unaffected by any subsequent material. The Erik Keenes Report of 17^th June 2001 was only prayed in aid outside the Immigration Rules and the Secretary of State was not obliged to give it the overriding weight for which he claimant contended. The Secretary of State was also fully entitled to point to the greater extent of family life which the claimant had in DRC and to conclude that that, together with her age, meant that her application for leave to remain failed.
64. I turn to the section 73(8) certificate. Those same factors also fully justified the Secretary of State’s conclusion that the same points were being raised for a second time to achieve delay. He was entitled to appraise the UNHCR Report of 20^th November 2001 as, in effect, not adding anything to the material available at the time of her appeal. Mr Hunter emphasised the uncertain origin of the Report, its particular context and the fact that it was compiled for a particular individual; it also makes plain that there is no objection in principle to the return of failed asylum seekers to Kinshasa. Those are wholly legitimate matters to weigh with the Secretary of State. No new evidence particular to the relationship or circumstances of the claimant was introduced.
65. As I have said, the Secretary of State was entitled to take full account of the conclusions of the Adjudicator, which were not tainted by procedural unfairness, and to conclude that there were no points of any substance which the claimant had failed to make to him. If there were any new and substantial points, she had had ample opportunity to put them before him in the letter of 8^th May. I am also satisfied that the Secretary of State considered such very limited fresh material as there was in that letter and reached an entirely reasonable conclusion on it. None of the newly introduced Reports showed that his successful appeal could reasonably be thought to add to the points which the claimant had already made about her brother in law’s involvement with Mobutu’s family, her connection with him and the fact that her return to Kinshasa would be as a failed asylum seeker. His refugee status was not shown by any material to be of the significance for which the claimant contended. His decision to certify the application was inevitable in the light of the obvious absence of any fresh points of significance. The Adjudicator had had everything of substance before him including the brother in law’s successful appeal. All the essential features of the Article 3 and 8 claims were before him. I do not consider there to have been any arguable error of law in the imposition of the certificate.
66. Although Ms Naik contended that, in the light of the 20^th November 2001 Report, the Secretary of State ought to have considered the difficulties which the claimant might all in reaching the part of DRC where her family lived, this was a forensic afterthought, not raised in the letter of 8^th May 2002 as an aspect of her case and his decision is not arguably flawed because it was not expressly dealt with.
67. I therefore refuse permission to apply for judicial review. All these applications are dismissed.
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. ............................. THE HONOURABLE MR JUSTICE OUSELEY .............................

MR JUSTICE OUSELEY: For the reasons given in the judgment which has been handed down, the various applications are dismissed.

MR JORRO: My Lord, I appear today, only today, for the claimant in lieu of Miss Naik.

MR JUSTICE OUSELEY: Yes.

MR JORRO: My Lord, my instructions are to apply to you at this stage for permission to appeal only that part of your judgment in which you refused permission to apply for judicial review against the certification made by the Secretary of State in his decision of 22nd May 2002. My understanding from the Civil Procedure Rules is that it is an application for permission to appeal which would then have to go to the Court of Appeal.

MR JUSTICE OUSELEY: Yes. Obviously you are entitled to argue that I have got it wrong, but the problem is I refused you permission on the basis that I did not think your case was arguable.

MR JORRO: Yes, my Lord.

MR JUSTICE OUSELEY: So it would be inconsistent with that approach to accept that you had a reasonable prospect of success on appeal. I am going to refuse you leave, insofar as you need it from me, and you will have to make your application to the Court of Appeal.

MR JORRO: Yes, my Lord.

MR JUSTICE OUSELEY: Any other matters?

MR HUNTER: My Lord, no.

MR JORRO: My Lord, the claimant does have the benefit of a CLS funding certificate. I would ask at this stage merely for an order for detailed assessment.

MR JUSTICE OUSELEY: Yes, detailed assessment.

MR JORRO: Thank you, my Lord.

MR JUSTICE OUSELEY: Thank you very much.