QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
33 Bull Street
B e f o r e :
(Sitting as a Judge of the High Court)
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr A Mahmood appeared on behalf of the Claimant
Miss Fernandes appeared on behalf of the Defendant
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"In addition, your asylum claim is one to which section 94(3) of the Nationality, Immigration and Asylum Act 2002 applies. This requires the Secretary of State to certify that your claim is clearly unfounded unless she is satisfied it is not clearly unfounded. After consideration of all the evidence available it has been decided that your claim is clearly unfounded and therefore it is hereby certified under section 94(2) of the Nationality, Immigration and Asylum Act 2002 that your claim is clearly unfounded."
At paragraph 57 precisely the same words were set out in relation to the human rights claim. Therefore at paragraph 58 the letter concluded:
"As your asylum and human rights claims have been certified as clearly unfounded you may not appeal while in the United Kingdom."
It is that decision, namely the certifying of the asylum claim and the human rights claim as clearly unfounded which is the subject of this application for judicial review. Permission was granted for the claimant to apply for judicial review by His Honour Judge McKenna on 10th October 2012. The learned judge observed that:
"It is at least arguable that the decision to refuse the claimant's asylum claim and to certify was unlawful on the facts of this case."
As now presented I do not identify that the claimant is arguing that the decision to refuse asylum in itself is a decision which is susceptible to judicial review on the facts of this case. The decision which it is said should be subject to judicial review and should be quashed is the decision to certify the claim for asylum and the claim under the Human Rights Act as clearly unfounded. The claimant's argument plainly will succeed whether he succeeds in relation to both or only one of those claims.
"Section 115(1) empowers – but does not require – the Home Secretary to certify any claim 'which is clearly unfounded'. The test is an objective one: it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.
How, if at all, does the test in s.115(6) differ in practice from this? It requires the Home Secretary to certify all claims from the listed states [Malawi is undoubtedly a listed State] 'unless satisfied that the claim is not clearly unfounded'. It is useful to start with the ordinary process, such as s.115(1) calls for. Here the decision-maker will –
i) consider the factual substance and detail of the claim
ii) consider how it stands with the known background data
iii) consider whether in the round it is capable of belief
iv) if not, consider whether some part of it is capable of belief
v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention.
If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not."
The judgment in that case was plainly concerned purely with an asylum claim but the principles equally apply to a human rights claim.
"For the avoidance of doubt the certificate issued to your client on the 20th May 2012 remains in place"
should be taken as a further consideration of the relevant test, in the light of the new material and a confirmation that even that new material leads to the same conclusion.
"The claimant and his wife are HIV positive. The treatment that they need is not available in Malawi. The couple's health will quickly deteriorate and they are at risk of death quite quickly thereafter."
I do not consider that the evidence I have and the Secretary of State had could possibly justify that unequivocal statement of the position. However, there is no doubt that the claimant would be put at some risk if he returned to Malawi. That is not something that of itself gives rise to a human rights claim, certainly not under Article 3. But, says the claimant, that risk is something that ought to have been considered by the defendant when she considered the interests of the children.
"It is noted that your two children are dependant on your asylum claim. Their general welfare needs have been considered in your claim also."
The defendant was relating the interests of the children back to the claimant but she did not, in that passage, relate the position of the claimant, namely his health, to the interests of the children.
"It is further submitted that section 55 of the Border Citizenship and Immigration Act 2009 and the case of ZH (Tanzania) v Secretary of State for the Home Department have not been considered adequately and in light of Mr Parmer and his wife's HIV. The fact that there is a potential risk to the children of discrimination and stigmatisation as a result of their parents' illness has not been considered. In addition, no reference has been made to the fact that the parents' life expectancy will be significantly reduced at best and extinguished at worst without the treatment available."