England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/11/2016

Mr Justice Holroyde:

1. On 6^th May 2016 the Secretary of State refused an asylum claim made by the claimant Mr Yesafu. She certified, pursuant to section 96 of the Nationality, Immigration and Asylum Act 2002 ("NIAA"), that he may not bring an appeal under section 82 of the same Act. The claimant seeks judicial review of the decision to certify.
2. The claimant also alleges that he has been unlawfully detained for much if not all of the period of well over two years during which he has been in immigration detention within the prison estate. In this regard, Mr Ball relies on behalf of the claimant on the principles stated in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, and submits that each of the four main principles has been breached. It has however been agreed between the parties that the unlawful detention aspect of his claim should be adjourned. This judgment, accordingly, relates only to the claim for judicial review.

The statutory framework:

3. One of the purposes of NIAA was to discourage a multiplicity of applications and appeals, and to avoid the delays inherent in a system which allows repeated appeals, by promoting a "one-stop" scheme. The statutory framework relevant to this claim is as follows.
4. Section 82 of NIAA provides a right of appeal to the First Tier Tribunal:

"(1) A person ("P") may appeal to the Tribunal where—

(a) the Secretary of State has decided to refuse a protection claim made by P,

(b) the Secretary of State has decided to refuse a human rights claim made by P, or

(c) the Secretary of State has decided to revoke P's protection status.

(2) For the purposes of this Part—

(a) a "protection claim" is a claim made by a person ("P") that removal of P from the United Kingdom—

(i) would breach the United Kingdom's obligations under the Refugee Convention, or

(ii) would breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

(b) P's protection claim is refused if the Secretary of State makes one or more of the following decisions—

(i) that removal of P from the United Kingdom would not breach the United Kingdom's obligations under the Refugee Convention;

(ii) that removal of P from the United Kingdom would not breach the United Kingdom's obligations in relation to persons eligible for a grant of humanitarian protection;

(c) a person has "protection status" if the person has been granted leave to enter or remain in the United Kingdom as a refugee or as a person eligible for a grant of humanitarian protection;

(d) "humanitarian protection" is to be construed in accordance with the immigration rules;

(e) "refugee" has the same meaning as in the Refugee Convention.

(3) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part."

5. Although it has subsequently been amended, section 120 of NIAA was at the material time in the following terms:

"120 Requirement to state additional grounds for application

(1) This section applies to a person if—

(a) he has made an application to enter or remain in the United Kingdom, or

(b) an immigration decision within the meaning of section 82 has been taken or may be taken in respect of him.

(2) The Secretary of State or an immigration officer may by notice in writing require the person to state—

(a) his reasons for wishing to enter or remain in the United Kingdom,

(b) any grounds on which he should be permitted to enter or remain in the United Kingdom, and

(c) any grounds on which he should not be removed from or required to leave the United Kingdom.

(3) A statement under subsection (2) need not repeat reasons or grounds set out in—

(a) the application mentioned in subsection (1)(a), or

(b) an application to which the immigration decision mentioned in subsection (1)(b) relates."

6. In these proceedings, a notice under section 120(2) has been referred to as a "one stop warning notice".
7. So far as is relevant for present purposes, section 96 was at the material time in the following terms:

"96 Earlier right of appeal

(1) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies–

(a) that the person was notified of a right of appeal under that section against another immigration decision ("the old decision") (whether or not an appeal was brought and whether or not any appeal brought has been determined),

(b) that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in an appeal against the old decision.

(2) An appeal under section 82(1) against an immigration decision ("the new decision") in respect of a person may not be brought if the Secretary of State or an immigration officer certifies–

(a) that the person received a notice under section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision,

(b) that the new decision relates to an application or claim which relies on a matter that should have been, but has not been, raised in a statement made in response to that notice, and

(c) that, in the opinion of the Secretary of State or the immigration officer, there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice."

8. In R (on the application of J) v Secretary of State for the Home Department [2009] EWHC 705 (Admin) (hereafter, "J") Stadlen J considered the effect of section 96 and concluded at paragraph 106 of his judgment:

"Under Section 96 (1) and (2) before the Secretary of State can lawfully decide to certify, she has to go through a four stage process. First she must be satisfied that the person was notified of a right of appeal under Section 82 against another immigration decision (Section 96(1)) or that the person received a notice under Section 120 by virtue of an application other than that to which the new decision relates or by virtue of a decision other than the new decision (Section 96(2)). Second she must conclude that the claim or application to which the new decision relates relies on a matter that could have been raised in an appeal against the old decision (Section 96(1)(b)) or that the new decision relates to an application or claim which relies on a matter that should have been but has not been raised in a statement made in response to that notice (Section 96(2)(b)). Third she must form the opinion that there is no satisfactory reason for that matter not having been raised in an appeal against the old decision (Section 96 (1) (c)) or that there is no satisfactory reason for that matter not having been raised in a statement made in response to that notice (Section 96 (2)(c)). Fourth she must address her mind to whether, having regard to all relevant factors, she should exercise her discretion to certify and conclude that it is appropriate to exercise the discretion in favour of certification."

9. It is relevant also to note that Mr Ball relies on guidance published by the Secretary of State, in an asylum policy instruction on sexual orientation in asylum claims, which includes the following –

"Lesbian and gay claimants may feel a strong sense of shame and stigma about their sexual orientation. They may also come from cultures where they have never openly discussed their sexual orientation. Generally speaking, self-identification as lesbian, gay or bisexual will be the normal starting point as an indication of a person's sexual orientation. However, the claimant may not always feel able to disclose this straight away, and it will need to be explored at greater length in interview."

10. Mr Malik, for the Secretary of State, relies on the following passage in the published guidance –

"Consideration must be given to any possible reasons for not disclosing the issue of sexuality at the first available opportunity during screening. Feelings of shame, cultural implications, or painful memories, particularly those of a sexual nature, may have led some claimants to feel reluctant about speaking openly about such issues and may therefore not be uncommon. … Each claim must be considered on its individual merits and all factors considered in the round. Any late disclosure must be fully investigated and the overall credibility of a claim considered in the round."

Chronology of relevant matters:

11. The claimant, a Nigerian national of Muslim religion, is now 31 years old. He entered the UK in April 2011. He held a student visa valid until July 2013. Between May 2012 and January 2014 he was convicted of four criminal offences: indecency; assaulting a police officer; sexual assault on a female; and a further sexual assault on a female. He received non-custodial sentences on the first three occasions, but on 5^th March 2014 he was sentenced to 14 months' imprisonment for his second offence of sexual assault. He has been subject to immigration detention, and has remained in prison, since completing that sentence on 1^st August 2014.
12. Because the sentence imposed in March 2014 exceeded 12 months' imprisonment, the claimant was liable to automatic deportation as a "foreign criminal" pursuant to section 32 of the UK Borders Act 2007. Section 32(5) requires the Secretary of State to make a deportation order in respect of a "foreign criminal"; but that duty is subject to the exceptions in section 33. The effect of the exception set out in section 33(2) is that if deportation would breach a person's Convention rights or would breach the UK's obligations under the Refugee Convention, then deportation ceases to be automatic, though it may still be ordered in the exercise of the Secretary of State's discretion.
13. The chronology of events relevant to this claim is as follows:

i) On 26^th April 2013 the claimant was arrested for the first of the sexual assaults mentioned above. The Secretary of State's case (disputed by the claimant) is that he was served with a notice that he was liable to removal (on the ground that he had entered the UK with a student visa when his true intention was to settle in the UK), and a section 120 one stop warning notice which said –

"You must now make a formal statement about any reasons why you think you should be allowed to stay in the United Kingdom. This includes why you wish to stay here, and any grounds why you should not be removed or required to leave. … You do not have to repeat any reasons you have already given us, but if you do have more reasons you must now disclose them. If you later apply to stay here for a reason which you could have given us now you may not be able to appeal if the application is refused."

ii) On 4^th April 2014 the Secretary of State issued to the claimant a notice informing him of his liability to deportation, and a one stop warning notice pursuant to section 120 of NIAA. Like the earlier such notice, this informed the claimant that he must now make a formal statement of the grounds on which he believed that he should not be deported, and warned him of the possible consequences of failing to raise a point which he might later seek to rely on. The notice was conveyed to the claimant in prison on 9^th April. It was recorded on the "confirmation of conveyance" form that the claimant "would not take paperwork/read paperwork". The claimant did not respond to the notice, and in particular did not put forward any reasons as to why he should not be deported.

iii) In October 2014 the claimant told a representative of the Samaritans that he had issues with his sexuality.

iv) On 11^th November 2014 removal directions were served on the claimant.

v) On 17^th November 2014 the claimant through his solicitors claimed asylum on the basis that he had a well-founded fear of persecution if returned to Nigeria because of his sexuality. He asserted that he is bisexual, and said that in 2011 he had been attacked after approaching a man in a Lagos nightclub with a view to having sexual relations with him. He said that a group of men had attacked him with hands and sticks, and he had suffered a wound to his forehead which resulted in a prominent scar. He said that after this incident, he felt that he would not be able to live openly with his sexuality in Nigeria for fear of ill treatment and persecution.

vi) On 20^th November 2014 the claimant's solicitors sent a pre-action protocol letter to the Secretary of State. The letter included the following passage:

"It should be noted that our client has only recently been able to disclose his reasons for claiming asylum, initially to the Samaritans approximately one month ago. This is common for a claim of this nature and no inference should therefore be drawn as a result of the timing."

The letter also said:

"On the 9 April 2014 the Secretary of State wrote to our client seeking reasons as to why he should not be deported at the end of his criminal sentence. Our client was unrepresented at the time and so was unable to respond."

vii) On 23^rd November 2014 the Secretary of State dismissed the asylum application (without having conducted any interview of the claimant), and certified the claim pursuant to section 96(2) of NIAA. She stated that she did not accept that the claimant is bisexual, for reasons which she explained; and she added –

"Furthermore, the timing of [the claimant's] claim is not suggestive of a person who has a genuine fear of return, particularly as he only raised these grounds following the service of his removal directions. Although you submit that your client has been unrepresented and that the nature of his claim has resulted in the delay in claiming asylum, you have not explained why your client specifically was not able to raise his fear until now, instead relying on general reasons for people feeling uncomfortable in raising a claim for asylum based on their sexual orientation. Furthermore, it was open to your client to seek legal representation, which he decided not to do."

Mr Ball points out that this letter did not refer to the one stop warning notice of 2013.

viii) On 25^th November 2014 the claimant issued a claim for judicial review of that decision. The grounds of his claim included a claim that the certification was unlawful because it failed to follow the guidance set out in J, and that section 96(2)(a) of NIAA required actual receipt of a section 120 notice.

ix) On 12^th December 2014 the claimant applied for accommodation and bail pursuant to the powers granted to the Secretary of State by section 4(1)(c) of Immigration Act 1999.

x) On 27^th August 2015 the Upper Tribunal granted the claimant permission to apply for judicial review, saying –

"… it is arguable that the respondent could not certify because the applicant had not or may not have received the section 120 notice (in accordance with section 96(2)(a)) and that the respondent did not consider at all or properly her discretion in accordance with the fourth stage set out in J."

xi) On 23^rd November 2015 the judicial review proceedings were settled by a consent order, whereby the Secretary of State agreed to withdraw her decision and certification of 23^rd November 2014 and to consider the asylum claim substantively in the UK.

xii) On 27^th November 2015 an initial screening interview took place.

xiii) On 19^th February 2016 the claimant was interviewed. He repeated his account of having been beaten in a nightclub because he had flirted with a man. He said that on that occasion he had been treated at hospital, where his head wound was stitched, but he was not admitted to the hospital and was not given any document recording his treatment. He said he had reported the attack to the police, and his attackers were arrested and detained for a day or two, but were then released because they bribed the police. He said he had only had one relationship with a woman in Nigeria. He said that at about the age of 17 he had a relationship for two years with a boy of similar age whom he knew from his school. He was not able to give the second name or family name of this boy. He said it was a secret relationship because it would not be allowed in his religion, and they never went to each other's home, but they sometimes went to a restaurant or a bar together. In this country, he said, he had had a relationship with a man whom he would see about three times a week. They would go to the home of the other man, whom he named, but the claimant had forgotten the address. They met in 2012 and last spoke in 2013, when "suddenly we lost contact because of a language barrier". He expressed his fear that he would not be safe if he were returned to Nigeria, and that the police there would not do anything if he were persecuted because of his bisexuality.

xiv) In March 2016 the Secretary of State issued a further section 120 one stop warning notice to the claimant.

xv) In response to that notice, the claimant on 14^th March 2016 made detailed representations in respect of his claim for asylum based on his sexuality. He said that he and his boyfriend in Nigeria would go to the park together, and would have sex at a hotel in Lagos, which he named, where they would stay overnight. He said that his relationship with a woman in Nigeria had ended because of issues relating to his sexuality. He gave further details of the incident at the nightclub when he was beaten up, saying that he had been hit with a broken bottle. He explained that his relationship with a man in this country had broken down because the other man spoke very quickly in English and the claimant struggled to understand him.

xvi) On 6^th May 2016 the Secretary of State refused the asylum and human rights claim and certified it pursuant to section 96(2). On 11^th May 2016 removal directions were issued.

xvii) On 12^th May 2016 the claimant's solicitors sent a pre-action protocol letter, to which the Secretary of State replied on 18^th May, maintaining her decision.

xviii) On 23^rd May 2016 this claim for judicial review was issued.

14. The challenged decision letter of 6^th May 2016 sets out the Secretary of State's reasons at some length. She accepted that in principle a person who is bisexual is capable of being a member of a particular social group for the purposes of the Refugee Convention, and that the claimant's claim therefore had the potential to engage the UK's obligations under that treaty. She accepted evidence that same sex relationships between men are illegal in Nigeria, and that homosexuals are generally unable to seek protection from the police in that country. She accepted that if the claimant were bisexual, he would be at risk on return to Nigeria. His claim to be bisexual was, however, rejected, for a number of reasons, which were set out in detail at pages 9-11 of the letter and which I summarise as follows:

i) It was thought that if he had been in a relationship with a boy in Nigeria for 2 years, he would at least know his partner's second name.

ii) The claim to have met in a park and a hotel was inconsistent with the claim to have kept the relationship secret.

iii) No evidence had been given as to how they could afford to stay in a hotel.

iv) The claimant had given inconsistent accounts of the incident at the Lagos nightclub.

v) He claimed he was unable even to name the hospital which he had attended, even though it was in the area where he lived.

vi) Neither his account of meetings with his boyfriend, nor the fact that he had reported the nightclub assault to the police, was consistent with a fear of persecution or prosecution because of his homosexuality.

vii) It was implausible that he had maintained a relationship with his boyfriend in this country if they had never been able to understand one another, and implausible that he did not know the man's address.

viii) It was considered that the claimant had failed to meet one of the criteria in paragraph 339L of the Immigration Rules, in that –

"You have failed to make a claim for asylum at the earliest possible time, you have waited until you were confronted with removal from the UK before making a claim for asylum."

15. The letter later went on to say, at page 12 –

"For the reasoning stated earlier in this letter, it is not accepted that you are bisexual. It is considered that you have fabricated this element of your claim …"

16. So far as certification under NIAA section 96(2) is concerned, the decision letter referred to the one stop notice served on 9^th April 2014 and noted that the claimant had failed to submit any submissions as to why he should not be deported. The letter continued (at page 27) –

"It is also noted that even before you became liable for deportation action for committing a serious criminal offence, you had previously been served with a section 120 notice after detention and interview on 26 April 2013. You were served with papers as a person liable to deportation who had used deception in order to obtain a visa to enter the United Kingdom, and were served with an IS.76 – a statement of additional grounds (a one stop notice under section 120). You had been arrested by Lewisham Police for sexual touching and immigration officers were in attendance. You did not raise your asylum claim then as you could have done, despite being made aware you were someone who was liable to be removed from the United Kingdom."

17. The letter went on to state the following conclusion at page 28:

"Having regard to all the relevant factors, the Secretary of State must address in her mind to whether she should exercise her discretion to certify and conclude that it is appropriate to exercise her discretion in favour of certification. Having taken into account all the relevant circumstances, including the fact that you have been given the opportunity to raise your current protection previously and your failure to provide a satisfactory reason as to why you have not raised this claim earlier, it is considered appropriate to exercise discretion in favour of certification."

18. Two features of the letter are relied on by the claimant. First, Mr Ball points to a passage at page 11 (immediately following the statement of the reasons for rejecting the claim of bisexuality) which reads as follows:

"The following facts of your claim have been considered, and on the basis of all of the evidence, have been considered as uncertain. In considering whether to accept these aspects of your claim, consideration has been given to paragraph 339L of the Immigration Rules and section 8 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004.

I have considered your claim to be bisexual, and to have had same sex relationships, which has been left uncertain and whether to accept these aspects of your claim. It has been concluded that you do not meet the criteria under paragraph 339L as you have not made a claim for asylum and the earliest possible time.

Therefore, I have decided to give you the benefit of the doubt because all the conditions in paragraph 339L of the Immigration Rules have been met.

Therefore, I have concluded that you have failed to meet the conditions in paragraph 339L of the Immigration Rules and this aspect of your claim has not been substantiated. Your claims that you are bisexual and that you have had same sex relationships are rejected."

19. As Mr Ball rightly submits, the last two paragraphs of that extract are mutually contradictory.
20. Next, Mr Ball points to a passage at page 28 (preceding the conclusion which I have quoted in paragraph 17 above) in the following terms:

"Your submissions also refer to the Secretary of State's policy on sexual orientation in asylum claims which is freely available from the gov.uk website, to justify your late disclosure of your claim, whereby a claimant may feel a sense of shame and stigma because of their sexual orientation and may not disclose this straight away. As the Secretary of State has not accepted your claim for protection as considered above, it is considered this guidance does not apply to you."

The submissions of the parties:

21. The claimant submits that the decision to certify has the drastic consequence that he has no right of appeal either in country or out of country. He submits that that is a particularly severe consequence because his claim as to his sexuality – an issue which is always fact-sensitive - has never been independently assessed by a Tribunal. Against that background, he contends that the decision to certify was unlawful for one or more of the following six reasons:

i) In the passage quoted at paragraph 20 above, the Secretary of State wrongly failed to take into account her own published guidance, and thereby acted irrationally. The guidance makes the point that some persons may feel unable to disclose their sexuality straight away, because of feelings of shame or stigma. Mr Ball submits that the Secretary of State has perversely decided that the guidance does not apply to the claimant's case, and has rejected his claim, because he did not initially assert his bisexuality and she therefore does not believe that he is bisexual. He suggests that she has thereby put the cart before the horse.

ii) The Secretary of State did not take the structured approach which J requires when considering certification under NIAA section 96(2), and failed to apply stages 3 and 4 of that approach. She did not properly address her mind to all relevant factors, because she excluded from her consideration the issue of whether the claimant may have been late in disclosing his sexuality because of a sense of shame. Mr Ball submits that although the decision letter says that the Secretary of State has considered the exercise of her discretion, she has not properly done so. She has only had regard to delay, which is not in itself a sufficient condition for certification. He relies in this regard on the Secretary of State's published guidance on "Late claims: certification under section 96", which emphasises that the factors taken into account in deciding whether to certify must be set out, and that it is not sufficient just to say that consideration has been given to the exercise of discretion. Mr Ball also relies on paragraph 112 of Stadlen J's judgment in J:

"In reality the matters which the decision maker could and indeed should take into account in forming his opinion as to whether there is or is not a satisfactory reason go far wider than the fact that they could and should have been raised earlier. Indeed at the third stage of the process that fact is a given in every case. If the matter could not and/ or should not have been raised earlier one of the necessary conditions precedent for the exercise of the power to certify will be absent and the power to certify cannot be exercised in any event. No question of whether there was or was not a satisfactory reason arises."

iii) The Secretary of State repeated the error which she had made when she certified the claimant's claim in November 2014, in that she based her decision solely on late disclosure, despite the fact that in 2015 the Upper Tribunal had regarded the claimant's case as arguable and the Secretary of State had thereafter agreed to withdraw her earlier certification.

iv) No certification was possible because the claimant, having refused to take or to read the section 96(2) notice, could not be said to have "received" that notice. Mr Ball submits that section 96(2)(a) requires that the claimant has actually received the notice, and that the plain meaning of "receive" requires that he must have taken the notice into his hands. He relies on the definition of "receive" in the Shorter Oxford English Dictionary:

"Take or accept into one's hands or one's possession (something offered or given); accept delivery (of a thing sent)."

v) In any event, the claimant had in fact raised his fear of persecution based on his sexuality in his response to the section 120 notice which he received in March 2016, and thus his sexuality has been "raised in a statement made under section 120(2)" as section 96 requires. The Secretary of State therefore could not properly certify his claim on the ground of a failure to disclose that matter. Mr Ball submits that the Secretary of State, having chosen to issue a new section 120 notice in March 2016, is estopped from now relying on a failure by the claimant to respond to the earlier notice issued in April 2014. He argues that it is unconscionable and unfair for the Secretary of State to rely on the lack of response to the 2014 section 120 notice when she had chosen to issue the 2016 notice and must therefore have intended that the claimant would be able to rely on matters mentioned in his response to that later notice.

vi) The statement of the Secretary of State's decision as to benefit of the doubt (set out in paragraph 18 above) is "contradictory and confused". Mr Ball submits that it cannot be assumed that there is a word-processing error in the inclusion of the sentence indicating that she has given the claimant the benefit of the doubt. He argues that it is equally possible that it is the following sentence which has been included in error. On any view, he submits, this is an unsustainable basis for the decision.

22. The Secretary of State's submissions in response follow the four stages set out in J, and can be summarised as follows:

i) The claimant did in fact receive a one stop warning notice on 26^th April 2013, but did not respond to it. The claimant's reliance on his refusal to take the notice conveyed to him on 4^th April 2014 is therefore a red herring. Further, and in any event, the requirement in section 96(2)(a) that the claimant "receive" the notice is satisfied by the evidence that on 4^th April 2014 the notice was conveyed to him but he refused to take it or read it. Mr Malik submits that it would lead to absurd results if "receive" was so literally interpreted that a claimant could avoid the consequences of a one-stop warning notice by simply refusing to take it into his hands. The claimant is not assisted at this stage by the fact that the Upper Tribunal in 2015 found this question of interpretation to be arguable.

ii) There is no merit in the argument based on estoppel. The issuing of the notice on 14^th March 2016 does not mean that the earlier notices were invalid. The Secretary of State is entitled to certify a claim if the criteria in NIAA section 96 are met. There was no express or implied statement by the Secretary of State that she would not rely on the claimant's failure to raise an issue which he could and should have issued in response to an earlier notice.

iii) Stages 1 and 2 of the four-stage approach are therefore satisfied.

iv) Stage 3 is also satisfied. The issue of whether a satisfactory explanation has been given must be considered in the light of all the facts and circumstances of an individual case. The Secretary of State is not obliged to accept the account given by a claimant. In this case, she properly considered the claimant's explanation for his failure to raise the issue of his sexuality when he received the April 2014 one stop warning notice, and she was entitled to decide that the explanation was unsatisfactory.

v) The claimant in 2016 put forward two reasons for failing to raise the issues arising from his claimed sexuality in 2014: they were, that he did not have legal representation in 2014, and that he felt ashamed about his sexuality. But the claimant had been legally represented earlier in the chronology of events, in particular shortly after he was served with a section 120 notice on 26^th April 2013, and must therefore have known how to obtain legal advice in 2014 if he wanted it. The Secretary of State's guidance as to a common reason for delay in raising issues of sexuality does not require her to accept a generalised assertion that such a reason applied in this case. She here applied her mind to the explanation put forward, and found it to be unsatisfactory. That was a conclusion which she was entitled to reach.

vi) The Secretary of State also adopted the correct approach at stage 4. She had regard to all relevant factors and was entitled to conclude that it was appropriate to exercise her discretion in favour of certification.

Discussion:

23. As I have noted at paragraph 16 above, the Secretary of State relied on the fact that the claimant had been served with a one stop warning notice on 26^th April 2013 and had not raised the issue of his sexuality in response to it. In my judgment, she was entitled to do so. It is true, as Mr Ball points out, that the certificate of conveyance relating to that notice was not signed; but it is clearly associated with the signed notice of immigration decision which bears the same date. I accept Mr Malik's submission that the fact that the warning notice was not signed should not be taken as an indication that it was not received by the claimant.
24. In any event, it is in my judgment entirely clear that the claimant received the one stop warning notice which was conveyed to him on 9^th April 2014. I reject the submission that in NIAA section 96(2)(a) the word "received" must mean "took into his hands", for three reasons. First, the dictionary definition on which Mr Ball relies does not so clearly confine the meaning to a physical acceptance of possession as to exclude any other meaning in circumstances such as these. In ordinary language a person may be said to have received a document whether or not he has physically held it, and whether or not he has actually read it. As I suggested to Mr Ball in argument, if a barrister had seen a set of papers brought into his room in chambers, and knew what they were but had not yet had an opportunity to pick them up or read them, he would not answer in the negative if the solicitor concerned rang to enquire if he had received the instructions. Secondly, as quoted in paragraph 13(vi) above, the claimant's solicitors in the earlier judicial review proceedings did not suggest that he had not received the April 2014 notice: on the contrary, they said that he had not been able to respond to it because he was not legally represented. Thirdly, the interpretation for which Mr Ball contends would lead to absurd results, and would defeat the obvious purpose of the legislation: a person served with such a notice could escape its consequences by simply refusing to pick it up; and that would be so even though he knew full well what it said because he could read it as it lay on a table or desk in front of him, or because it had been read aloud to him.
25. The Secretary of State was therefore entitled to decide that the claimant had "received a notice under section 120" and that the first stage of the approach in J was satisfied.
26. In response to the 2016 one stop warning notice, the claimant put forward his claim for asylum on the basis of his claimed bisexuality. Given that he relies on past events and relationships, all of which had occurred by 2013 at the latest, that was certainly a matter which could have been raised in response to the April 2014 one stop warning notice, and indeed in response to the April 2013 warning notice. As to whether it should have been raised, the claimant faces the immediate difficulty that in April 2014 he chose to disable himself from raising it by refusing to take, and therefore refusing to respond to, the notice which was brought to him.
27. I am unable to accept Mr Ball's submissions based on a suggested estoppel. The decision of the Secretary of State to issue a further one stop warning notice in March 2016 cannot be taken as an express or implied representation by her that the earlier warning notices were no longer of any relevance and that any failure to respond to an earlier warning notice had become immaterial. The simple facts are that the claimant chose not to respond to the warning notice in 2014 but did respond to the warning notice in 2016. It cannot be said that there has been a joint assumption by the parties that there would be no certification based on his failure to raise the issue of sexuality at the earlier stage. Nor can it be said that the claimant has in any way acted in reliance on such an assumption, or has acted to his detriment because of any representation. I reject the submission that it is unfair or unconscionable for the Secretary of State to issue the notice in 2016 – thereby giving him the opportunity to put forward any additional reasons (for example, based on the passage of time or recent developments in his life) - but then to rely on the failure to respond to the notice issued in 2014. In my view, a very clear representation would be necessary before it could be argued that the 2016 notice was, so to speak, an invitation to rewrite history and to treat the new notice as if it were the first time he could have raised the issue of his sexuality. The claimant is not able to point to any such representation.
28. In those circumstances the Secretary of State was in my view entitled to find that the issue of the claimant's sexuality should have been raised in response to the 2014 warning notice (and indeed in response to the 2013 notice). She was therefore entitled to decide that the second stage of the approach in J was satisfied.
29. As I have summarised in paragraph 14 above, the detailed decision letter of 6^th May 2016 set out at pages 9-11 a number of reasons why the claimant's assertion of bisexuality was rejected as a fabrication. A number of free-standing reasons are stated before referring to the claimant's failure to make his asylum claim at the earliest possible time. The passage which follows, which I have quoted at paragraph 18 above, is rightly criticised by Mr Ball as self-contradictory. The slipshod manner in which that passage has been drafted is very regrettable. Nonetheless, when one reads the letter as a whole, there can in my view be only one conclusion as to the nature of the error which has been made: it is clear that the sentence

"Therefore, I have decided to give you the benefit of the doubt because all the conditions in paragraph 339L of the Immigration Rules have been met."

has been included by mistake. The letter as a whole makes it clear that all the conditions in paragraph 339L had not been complied with.

30. There is no basis for suggesting that the Secretary of State did not consider the two explanations which he gave for his failure in April 2014 to put forward his claim for asylum based on a fear of persecution because of his bisexuality. She was entitled to conclude that they were unsatisfactory. They face the obvious difficulty that they are inconsistent with the claimant's actions in declining to take the warning notice when it was brought to him.
31. As to the first reason, it is clear that the claimant knew how to access legal advice, because he had done so in 2013, and the assertion that he was unrepresented at the time of service of the 2014 notice is therefore a very weak explanation.
32. As to the second reason, the assertion that he was inhibited by shame or embarrassment is a weak explanation because it has only ever been advanced in the most general terms, invoking the Secretary of State's guidance on the topic without any detailed explanation of how or why it might apply to him. The letter of 20^th November 2014, which I have quoted in paragraph 13(vi) above, appears to be the fullest exposition which the claimant has given of this important part of his case.
33. I cannot accept the submission that the Secretary of State ignored her own guidance and rejected the explanation for an improper reason. The structure of the decision letter shows that she properly considered all the facts and circumstances of the case, and she had strong reasons to reject the claim of bisexuality which were wholly independent of the claimant's failure to raise the issue of his sexuality until 2016. This is not a case in which there was no reason to doubt the explanation other than the fact that the claimant had failed to advance it in response to the earlier warning notice. On the contrary, the credibility of his assertion as to his sexuality had been tested in oral interview, and the Secretary of State was entitled to conclude that it was wholly unconvincing. It was wholly or largely unsupported by any independent evidence. The fact that the claimant bears a scar might be regarded as providing some support for his account that he sustained an injury at a nightclub, but it proves no more than that: it does not provide any evidence to support the claimant's account that he was beaten up because he made a homosexual advance to a stranger.
34. In the passage which I have quoted at paragraph 20 above the sentence

"As the Secretary of State has not accepted your claim for protection as considered above, it is considered this guidance does not apply to you."

is unhappily phrased, and it is understandable that Mr Ball relies on it in support of his submissions. But when the letter is read as a whole, and that sentence is seen in context, it seems to me that its meaning is clear: for the reasons stated, the Secretary of State has rejected the claim of bisexuality as a fabrication, from which it follows that shame or embarrassment over his sexual orientation was not the explanation for the claimant's earlier failure to mention it.

35. In my judgment, the Secretary of State was entitled – for the reasons stated in the letter, which include but are by no means confined to his failure to raise the issue of his sexuality in 2014 – to conclude that there was no satisfactory reason for that matter not having been raised in response to the 2014 warning notice. It cannot be said that she failed properly to consider all relevant circumstances. The Secretary of State, contrary to Mr Ball's submissions, has not put the cart before the horse or engaged in a circular argument. She has not said that she has rejected the explanation solely because it was late: on the contrary, she has rejected the explanation because she does not believe the claim of bisexuality, for the valid reasons given in the letter, which include the failure to raise the point at the appropriate time. She was therefore entitled to decide that the third stage of the approach in J was satisfied.
36. It is clear that the Secretary of State recognised that a fourth stage was necessary, and that she must give separate consideration to the question of whether to exercise her discretion in favour of certification. I accept Mr Malik's submission that the decision letter shows that she properly did so by taking into account all the relevant circumstances before coming to the conclusion which I have quoted at paragraph 17 above. Mr Ball's submission as to a flawed approach, relied on here as it is at stage three, is in my view no stronger at this fourth stage. In considering how to exercise her discretion the Secretary of State properly had regard to factors which included, but were not limited to, the claimant's failure to raise the matter of his sexuality earlier than he did. Although the consequence of certification is severe for the claimant, that fact alone cannot be a reason for challenging her decision. In my judgment she was entitled to decide to exercise her discretion as she did.
37. For those reasons, notwithstanding Mr Ball's determined submissions on behalf of the claimant, this application for judicial review fails and is dismissed.
38. It follows that the issue of whether the claimant should immediately be released, which was argued in the event that his claim succeeded and the certification was quashed, falls away.
39. Counsel should endeavour to agree an order which gives effect to this judgment and to the adjournment of the claim based on unlawful detention.