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Cite as: [2018] EWHC 1295 (Admin)

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		Neutral Citation Number: [2018] EWHC 1295 (Admin)
		Case No: CO/3623/2017

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

Royal Courts of Justice
Strand, London, WC2A 2LL

25/05/2018

B e f o r e :

HIS HONOUR JUDGE BLAIR QC
(sitting as a Deputy Judge of the High Court)
____________________

Between:

	R (on the application of ROO [NIGERIA])	Claimant
	- and -
	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Defendant

____________________

Sonali Naik QC and Emma Fitzsimons (instructed by Duncan Lewis Solicitors) for the Claimant
Neil Sheldon (instructed by the Government Legal Department) for the Defendant
Hearing dates: 24 and 25 April 2018
____________________

HTML VERSION OF JUDGMENT
____________________

His Honour Judge Blair QC :

The background history to the claim

The Claimant is a 35 year old woman who is a Nigerian national. She arrived in the UK in March 2012 (aged 29) on a student visa to study business administration. She was given leave to remain until 28 June 2015. Her father (the headmaster of a private school in Lagos) was funding her further graduate studies in the UK.

In October 2013 she married Mr RF (a Portuguese national). Different accounts have been given at different times for her reasons for that marriage: her love of RF because he was the man of her dreams; a desire to have children; to avoid her father's plans for an arranged marriage with someone she didn't know; and, most recently, to avoid her parents finding out about her sexual identity. They are not all necessary mutually exclusive.

In February 2014 she applied for an EEA residence card based upon that marriage. That application was withdrawn 7 months later (in September 2014) because she and her husband had separated after 11 months of marriage.

Matters had taken a further turn for the worse because, upon hearing of her marriage, her father withdrew his financial support. She was unable to continue her studies and her leave to remain was curtailed, effective from 22 May 2015.

On 20 May 2015 she applied for leave to remain, both inside and outside of the Immigration Rules (humanitarian protection - Rule 339C and discretionary grounds), based on submissions that she would be treated as an 'outsider' by her family in Nigeria because her parents had arranged a marriage partner for her and were furious that she had married a foreigner to thwart their plans. Her submissions (presented in considerable detail on her behalf by specialist immigration solicitors) asserted that Mr RF had turned out to be controlling and abusive, he took her money and used it as he wanted, treated her as a modern slave, subjected her to domestic violence and she had become like a prisoner in her own home. That application was refused and certified as clearly unfounded (thereby restricting her to an out-of-country appeal). She was made the subject of Home Office reporting conditions. However, she then failed to report as required.

The Claimant was apprehended nearly 2 years later on 21 March 2017, whereupon she was detained as an overstayer. She indicated that she suffered from the medical condition of endometriosis for which she took medication and this was carefully recorded in her detention notes.

A nurse saw her on 23 March 2017, within 8 hours of her arrival at the detention centre, recording that the Claimant had not received any psychiatric care or medication for her mental health, either in the community or in hospital, and that she had no concerns over her physical health. A doctor saw her the following day but he did not conduct a detailed medical assessment and apart from noting her gynaecological issues described her as "alert, well, nil acute issues".

Removal directions were set for 1 April 2017 (i.e. 10 days after she had been located), but shortly before her removal, on 30 March 2017, a firm of solicitors submitted a letter on the Claimant's behalf in which asylum was claimed on the ground of a well-founded fear of persecution in Nigeria because of her sexuality as a lesbian. A Statement of Additional Grounds (s.120 Nationality, Immigration and Asylum Act 2002 – 'NIAA') was submitted in which she said she should not be removed from the UK and should be allowed to stay. It stated that when she was 14/15 her parents caught her in a sexual act with another girl. She explained that they were enraged because it was an abomination in their culture and religion and she was:

"really tortured…I was cut with a razor blade, I almost bled to death, the marks are still on my back till today and I still feel pains during winter...Though I didn't try it again when I was in Nigeria but I never liked men despite the torture and the violence I went through in the hand of my parent. I have had a couple of relationships with men in the past but I came to the realisation that men are very selfish and wicked, they took my money and abandoned me this led to my depression and I went online to search for relationship and I met 2 ladies we made contact and became friends with them, I then discovered I was making good recovery health wise that necessitated becoming more interested in the relation gay relationship with my female partners knowing that it is not a criminal offence in the UK like in Nigeria where I come from. The same sex Marriage Prohibition Act criminalises homosexual with 14 years imprisonment."

Because of this claim for asylum the removal directions for the next day were deferred.

An 'Initial Contact and Asylum Registration Form' was completed on 4 April 2017 - recording a screening interview. In Part 2 she is recorded as having described two physical health conditions (fibroids and endometriosis), but when asked if there was anything else she would like to say about her physical or mental health (section 2.3) it records: "No other concerns".

When asked briefly to explain all the reasons why she could not return to Nigeria, the following is recorded:

"I fear my parents and the larger community – due to my sexuality. I am a lesbian – realised this approaching 14/15 yrs old. My father is a Muslim – he beat me when 14/15 yrs old as being a lesbian is not allowed. Relatives did the same thing. Govt against gays. If I return there is discrimination in Nigeria against lesbians – will be stoned to death."

It was then explained to her that, because of the nature of the claim, some applicants may possibly feel more comfortable speaking about it to someone of a particular gender. She expressed no preference.

Section 6 of the form deals with material relevant to the decision concerning 'Detention Suitability'. She was asked for any reasons why she should not be detained while her claim was being considered and all she replied was:

"I'm not happy here. I have females around me – do not want this to affect my case."

Regular Detention Reviews were carried out. Her self-reported Endometriosis was initially categorised at the lower (Level 1) risk criterion under the Defendant's 'Adults at Risk Policy'. But by 7 April 2017, having had a number of visits to nurses and a doctor in healthcare, she was categorised as a Level 2 risk. It is recorded that there were no concerns raised, nor material received, to indicate that she was unfit for detention. Regular detention review decisions were made thereafter assessing her risk of absconding as sufficiently great to outweigh the arguments in favour of her being released, notwithstanding that her new asylum claim could take 2-6 months to be resolved.

On 12 April 2017 there is a note of her attending the Healthcare Centre which reads:

"History: attended healthcare requesting [a] R[ule]35 [Report].

denied on arrival

when asked why states she was very distressed and upset, and maybe didn't understand or hear the question

booked for next available slot (4/5/17)"

The Claimant's full asylum interview took place on 19 April 2017. There is a typed record of 225 questions which were asked of her over a period of about 2½ hours, with only a couple of very short breaks. Subsequently she provided 10 handwritten sides of A4 paper containing fuller answers to a number of the questions (including more details of her lesbian encounters / relationships). There is nothing in the interview record which cautions the interviewee about the Defendant's power to 'certify' an asylum claim under s.96(2) NIAA (see below) and the added importance, therefore, of her explaining in detail the reasons for not having put forward the claim when she had the opportunity nearly 2 years before. Although she had a legal representative present, they were expressly asked not to intervene during the course of the interview unless it was necessary to avoid a significant misunderstanding, but they were informed they could make any comments at the end of the interview. I have not seen the very end of the interview because the end of Question 225 and its answer has been cut off.

In her interview she described being raped when aged 10 by a man who lived in her compound (Questions 27-32). She said she had never told anyone about it and when asked why she didn't tell her parents she became upset and was crying. She said she was little and did not know what to do. The interview continued, without a break, with questions asking her to expand upon her account of her relationship with another girl when 14/15. She described being beaten when they were caught; her parents saying they should have circumcised her; that maybe she was filled with an evil spirit; and that not very long afterwards she was subjected to female genital mutilation ('FGM') from which she lost a lot of blood and became feverish.

At Question 151 the interviewer commented that she had been in detention since 21/03/2017 and asked "Q. Why have you not completed a Rule 35 Report? – A. I did not know I was supposed to do that until I met with my solicitors." She explained that she didn't remember being asked on arrival whether she had been a victim of torture and, if she had, maybe because she was shocked at the time. (Plainly the Defendant had nonetheless been aware, 3 weeks earlier on 30th March 2017, of her claim of having been tortured as a child.)

She described a further short relationship with a girl at school when aged 16 and another short affair with a woman when she was at University in Nigeria aged about 22. Thereafter she said she had no relationships with men or women until marrying Mr RF, which she entered so as to avoid an arranged marriage which her parents were wanting to force her into with the son of her father's friend. Following her separation from RF she said she had relationships with 2 women in 2015 and 2016 as well as a couple of online interactions with 2 other women. There were questions about her claimed conversion to Christianity from Islam; her parents learning through a cousin of her being lesbian; and of her speaking with them most recently to wish them a happy New Year. Towards the end of her interview (Questions 209-218) she begged her questioner to allow her to remain, becoming upset and crying. She explained her unhappiness before coming to the UK, the acceptance of lesbians in the UK and the dire consequences if caught in Nigeria as a lesbian. Asked about her life in the UK (Question 210) she replied:

"It is giving me choices to make. Even if I have not actually come out as I would want to. Even here they still discriminate. It is the law they cannot do you as in NGA. Please. I have not come out as lesbian. I have not been able to explore myself. It is better than in NGA. Please."

Questioned as to why she had not given all of this history and explanation to the Home Office when applying for EEA residency following her marriage to Mr RF or when she sought leave to remain after separating from him, she stated that she had a visa then and did not know. When it was pointed out that she did not have a valid visa in 2015 when she made her second application (after the separation), she claimed a lack of knowledge and said her solicitors did not tell her what she had to do. She accepted she had not told those solicitors about these fears of a return to Nigeria in 2015. She said she did not comply with her Home Office reporting conditions thereafter because of fear. It was put to her that she was given an Additional Grounds form (s.120 NIAA) back in 2015 so as to provide all of her reasons why she should not be removed and she was asked why she had not then told the Home Office about her fears of ill-treatment in Nigeria due to being a lesbian. She denied having been personally given the form and, in relation to her lawyer, said – "I did not get proper information from him."

As the interview progressed, the questioner (who was the Defendant's decision-maker in respect of this claim) made increasing numbers of adverse comments and confrontational assertions, e.g. "Q.194 Why do you have a conviction in Christianity? – A. I do not know. Q.195 I am beginning to wonder if anything you have told me today is true. – A. Why? Q.196 Because none of this makes sense or rings true. You have been vague when I have asked for details, you have contradicted yourself and now you are not answering my questions." The latter comment is hard to understand since she answered every one of his questions. The end of her answer to that latter question was: "I am sorry if I upset you."

The Claimant's Detention Review that same day records further physical health issues:– Fibroids and claimed MRSA. It also notes her claim to have been subject to FGM.

The Defendant's decision letter concerning the Claimant's asylum claim is dated 3 May 2017. It refused the claim in its entirety: Asylum - because she had not established a well-founded fear of persecution; Humanitarian Protection - because she had not shown she faces a real risk of suffering serious harm on return; Article 8 ECHR breach - because she does not qualify under the relevant Immigration Rules; and Discretionary Leave/breach of Articles 2, 3 & 8 ECHR - because she does not qualify for it on the evidence. The decision letter reviewed the evidence provided and (a) rejected the Claimant's contention that she is a lesbian, (b) did not accept that she had changed her religion from Islam to Christianity, (c) did not accept that she faced a real risk of serious harm on return to Nigeria at the hands of her parents, (d) accepted she may have had FGM but considered it reasonable to conclude it was as a result of societal and cultural norms rather than a result of her sexual behaviour, and (e) concluded that even if she married against her parents wishes, or had changed her religion, she could seek protection from the Nigerian State or relocate within the country.

The decision letter then addresses the question of 'certifying' her asylum claim under s.96(2) NIAA (which has the draconian consequences of removing any rights of appeal to a First-Tier Tribunal Judge, either in-country or out-of-country). It sets out the 3 conditions precedent for such a certification and explains the decision-maker's conclusion that each of them has been established. It acknowledges that the case of R (J) [2009] EWHC 705 (Admin) added a requirement of asking whether, having regard to all relevant factors, it is still appropriate to 'certify' – i.e. should the Defendant exercise her discretion. The decision letter comments upon the absence of any aspect of the current asylum claim featuring in her 2015 claim, wherein she was legally represented; notes the absence of any material from those former solicitors responding to her criticisms of them (BT (Former Solcitors' alleged misconduct) Nepal [2004] UKIAT 00311) and refers to the fact of her absconding, before finally concluding:

"136. In further submissions you have offered no evidence why your claim should not be certified under S96. Having considered your immigration history, the nature of your application dated 15-05-2015 and the considerable contradictory evidence submitted in that application and your current asylum claim, it has been decided that it is not appropriate to exercise discretion in your favour and to certify your claim under S96 of the 2002 Act."

A Rule 35(3) Detention Centre Rules 2001 examination and Report was finally undertaken on 12 May 2017 when the Claimant saw Doctor Babalola (7½ weeks after being detained and 6 weeks after her first assertion to the Defendant of having been tortured by her parents some 20 years earlier when aged 14 or 15). The doctor reported that she had concerns that the Claimant may have been a victim of torture. The Claimant's account to her was of being slashed all over her body with a razor blade and hit with sticks as a result of her parents' wrath at catching her in bed with a female friend when aged 14. She also said she believed her genitals had been cut by a man organised by her parents.

The doctor thought there to be a high likelihood that the Claimant's account was of an 'unsuccessful' genital mutilation, because her genital area was intact. The scars all over her body were in keeping with the trauma described. No medical or psychological help had ever been sought because she had seen it as a stigma and, having failed to address this gruesome childhood issue, she had lived her life with very low self-esteem, anger, loss of association with peers, forgetfulness and lack of concentration. The Claimant believed it had affected her marriage through her failure to show her husband any affection, which then led to arguments. She reported being separated both from him and her female partner.

Dr Babalola's Rule 35(3) Report followed the Defendant's required template document, which includes:-

"Please set out your reasoned assessment…This should include your assessment of:

…the impact detention is having on the detainee and why, including the likely impact of ongoing detention"

The doctor responded to that standard invitation as follows:-

"The aforementioned psychological symptoms have always been a problem before she came into detention. It is quite severe, and I don't think there is a direct link with being in detention.

She will need a few sessions with a trained psychotherapist to talk things through with her in future, should she wish to address these."

5 days later there was a further Detention Review. The risk level (under the Defendant's 'Adults at Risk Policy') was maintained at 'Level 2' due to her endometriosis, but the Rule 35 Report was now cited as identifying 'IEOT' (Independent Evidence of Torture). It notes the Level 2 risk being "due to GP concerns but they confirm she is fit for detention, fit to fly and any treatment can be given in Nigeria." Detention continued to be maintained because her asylum claim had been 'certified', removal was imminent, and she was considered highly likely not to be removable if not detained (considering her previous absconding).

Dr Arsiwala saw the Claimant 4 days later on 21 May 2017 and recorded that she had a mild cough and sore throat but no mental health issues.

At the end of July her solicitors sent their first Pre-Action Protocol letter in respect of Judicial Review proceedings.

Health matters began to change about 4 months after the Claimant had been detained, when, on 4 August 2017 (after a series of adjourned removal dates due to a shortage of escorts), she made comments about self-harm. She was put onto a regime of frequent observations due to these concerns of self-harm. Dr Zaman (a psychiatrist) saw her on 9 August 2017 and concluded she was suffering from a severe depressive episode.

On 22 August 2017 the Court granted a stay on her removal directions which, together with the on-going concerns about her mental health, led to a recommendation she be released from detention and this took effect on 6 September 2017.

Also on 22 August 2017, the Claimant was examined for 3 hours by Dr Steen for the purposes of a medico-legal report commissioned by her solicitors, which was later written-up and dated 25 September 2017. Dr Steen concluded that the Claimant's reported symptoms and her observed demeanour met the criteria for being classified as 'a severe depressive episode'. She also addressed the perceptual symptoms the Claimant was reporting and concluded that they might be a part of her depressive episode, or might be psychotic symptoms associated with Post Traumatic Stress Disorder (PTSD), or might be a normal phenomenon that can happen when falling off to sleep. She concluded that the Claimant presented a medium risk of self-harm or suicide, was not fit to be detained and she was concerned that the Claimant's mental health could deteriorate further if detention continued. By the time Dr Steen provided this written report the Claimant had been released some 3 weeks before.

Dr Kelly was also commissioned to provide a medico-legal report – this was on the topic of FGM. She saw the Claimant on 22 September 2017. Her report, dated 24 September 2017, concluded that the Claimant's account was plausible. She commented that apparent 'vagueness' or 'inconsistency' can be misconstrued by those unfamiliar with people who suffer from traumatic memories – such features are recognised symptoms of PTSD.

The Claimant's solicitor sent two short statements to the Defendant's Asylum Casework section on 21 September 2017 - one was from the Claimant and one from a male friend (both dated 21 August 2017). These were supplemented on 27 September 2017 with a statement from the solicitor, explaining the great difficulty she had had coaxing instructions from her client in order to draft a witness statement (which had taken over 20 hours to complete); plus a 29 page witness statement from the Claimant; and the medico-legal reports of Doctors Steen and Kelly.

The covering letter from the Claimant's Solicitor explained that this evidence was to be provided to the Administrative Court in support of an Oral Permission hearing but also made the following request:

"We invite your offices to consider the evidence enclosed and withdraw your previous decision to certify our client's asylum claim under s.96(2)"

The Defendant replied on 18 October 2017 with a letter headed: "FURTHER SUBMISSIONS DECISION". It stated that the additional materials submitted had been considered as "further submissions pursuant to a fresh claim" but a conclusion reached that the Claimant does not qualify for leave on any basis. (It was drafted by the same decision-maker as the 3 May 2017 decision.)

This decision letter (from paragraph 5 to 56) sets out 'Protection based Submissions' which have not previously been considered but which do not create a realistic prospect of success before an Immigration Judge. Paragraph 68 concludes that the submissions do not amount to a fresh claim and sets out the correct test that has to be applied: "[t]he new submissions taken together with the previously considered material do not create a realistic prospect of success…it is not accepted that should this matter be considered by an Immigration Judge, that this could result in a decision to grant you asylum [etc.]".

The relevant procedural history of the application for Judicial Review

I see no need to set out in this judgment the somewhat complex procedural history of this claim. Suffice to say, Michael Fordham QC (sitting as a Deputy Judge of the High Court) considered a renewed oral application for permission to bring a claim on 9 November 2017. He refused permission on a number of grounds, but granted permission on 4 grounds. Those Grounds were set out, as directed, in a document entitled Amended Grounds for Judicial Review.

Those 4 challenges are essentially to the following decisions:

i) The decision to refuse and 'certify' her asylum claim under s.96(2) NIAA;

ii) The decision to refuse to accept that the additional supplied material amounted to a fresh claim under paragraph 353 of the Immigration Rules;

iii) The decision to allocate her claim to the Detained Asylum Casework (DAC) process when the Claimant was unsuitable, due to her vulnerabilities and sexual identity;

iv) The failure to remit the Rule 35(3) Report back to its author because of a patent omission to assess the prospective likely impact of ongoing detention.

The arguments on behalf of the Claimant

Ground 1

The exercise of 'certification' under s.96(2) NIAA (which prevents any appeal under s.82 from a decision of the Defendant) has 3 statutory conditions precedent:

a) that the Claimant has received a notice under s.120(2) (a 'one-stop' notice);

b) that the appeal relies on a ground which should have been, but has not been, raised in a statement made under s.120(2) or (5); and

c) that, in the opinion of the Defendant, there is no satisfactory reason for that ground not having been raised in a statement made under s.120(2) or (5).

It is common ground that the first 2 of those conditions have been established.

In R (J) v SSHD [2009] EWHC 705 (Admin), Stadlen J concluded that there has to be a 4th consideration so as to ensure that a 'certification' decision complies with the obligation to comply with the European Convention on Human Rights (ECHR) and Human Rights Act 1998 (HRA). In coming to that conclusion he said this (with my underlinings for emphasis):

"137. … it must in my view be right that either in the third stage of the process, that is in assessing whether there is a satisfactory reason, or at the fourth stage, that is to say in addressing whether to exercise the discretion, anxious scrutiny must be given by the decision maker to the consequences of certification.

138. It is in my view self evident that in Part V of the 2002 Act Parliament has sought to strike a balance between two important and legitimate public policy objectives which are potentially in conflict with each other. On the one hand is the principle of access to an independent tribunal for determination of asylum and human rights claims. On the other there is the legitimate public interest in the efficient and cost effective disposal of asylum claims and the desirability of finality in such disposal…[Circumstances which do not apply in this case]… However, it is in my view implicit in that construction of section 96 of the 2002 Act that Parliament intended that there should be a genuine and robust safeguard against the possibility of a second refusal by the Secretary of State being erroneous. One safeguard of course is provided by the existence of the right judicially to review the refusal of the second fresh claim. There are, however, obvious and well known limitations to the extent of that right. A refusal of a second fresh claim can be challenged only on Wednesbury grounds and the court cannot substitute its own view of the merits for those of the Secretary of State. Nor in a case which turns on the truthfulness or credibility of the Claimant is it the practice for the court on a judicial review application to test the evidence or assertions of the Claimant.

139. There are thus obvious and potentially critical limits to the ability of the right to apply for judicial review to act as an adequate safeguard against a wrongful refusal by the Secretary of State of a second fresh claim on the basis of an erroneous view of the truthfulness or credibility of the Claimant. In those circumstances in my view it is to be assumed that Parliament intended that the process of considering whether there are satisfactory reasons for matters not having been raised earlier and deciding whether to exercise the discretion to certify an asylum or Article 3 claim which has been determined to have a realistic prospect of success should involve anxious scrutiny of all the relevant circumstances and that the ambit of the relevant circumstances to be taken into account should be generously wide.

140. In my view those circumstances would ordinarily include the fact that the claim is an asylum claim and/or an Article 3 claim, the risk of persecution death and/or torture if the claimant is returned on the basis of a refusal which the Secretary of State has determined would have a realistic prospect of being overturned on appeal, the fact of that determination and the reasons for it, whether the Secretary of State rejected the second claim on the merits robustly or only with difficulty and on balance. In a case such as this, where the claimant's professed reason for not raising matters earlier is integrally bound up in the version of events which is at the heart of the substantive claim, in my view the Secretary of State should consider the impact of his determination that there is a real prospect of that version of events being accepted on appeal as truthful on the question of whether the claimant's reason for withholding it earlier is satisfactory. If the reason put forward is a misguided fear that telling the truth or the whole truth might lead to the claim being rejected or to other adverse consequences, the fact that the reason involves an admission that the claimant lied in his original version of events does not in my view discharge the Secretary of State from considering whether, taken together with other circumstances, there might nonetheless be a satisfactory reason. In other words it should not be regarded as automatically dispositive of the question to be answered by the decision maker. Although Section 96 has, in my view, a legitimate purpose of creating an incentive for claimants to be open and honest in their original claims, the power of certification is not designed to punish those who lie through misguided fear of telling the truth, by exposing them to a real risk of persecution, death or torture.

141. Parliament was faced with two potentially competing considerations of public policy: the prevention of abuse by repetition and delay and access to independent scrutiny of a rejected but arguable asylum or Article 3 claim. The structure of Part V of the 2002 Act suggests that it had well in mind both considerations: see the power to certify in Section 96(1) and (2) in relation to the former and the right of appeal in Section 82 in relation to the latter. Although I reject the Claimant's primary submission that Parliament drew the balance by excluding entirely the power to certify in asylum and Article 3 claims, I do so in part because in my view it is to be inferred that Parliament intended that the third and fourth stages of the Section 96 (1) and (2) certification process provided for in Section 96 (1) (c) and Section 96 (2) (c) should provide a control mechanism for enabling a proper balance to be struck between the two potentially competing policy considerations.

142. Thus although Section 96(1) (c) and Section 96 (2) (c) assign to the Secretary of State the assessment of whether the tendered explanation is satisfactory, that assessment was not in my judgment intended by Parliament to be undertaken without reference to the context or by reference to a narrow test of what is satisfactory. The measure of what might be considered unsatisfactory in the context of an explanation for why a student's essay has been handed in late is unlikely to be the same as in the context of why a full and truthful account of events was not originally forthcoming by a newly arrived senior member of a proscribed organization acting under pressure of time, in fear and on bad advice. As Sedley LJ remarked in F P Iran v Secretary of State for the Home Department [2007] EWCA Civ 13 , in distinguishing dicta of Lord Bridge of Harwich in Al Mehdawi v Home Secretary [1990] 1 AC 876 at 898: "For some of these [asylum seekers], the exercise of the right to be heard may literally be a matter of life and death: for all of them save the bogus (and even they have to be identified by a judicially made decision) it is in a different league from the loss of a student's right to remain here." (paragraph 43).

143. In assessing the tendered explanation in my view the Secretary of State should do so among other things by reference to the impact that the explanation has on the credibility of the fresh claim. If the explanation is on reasonable grounds considered to be so slight or non existent as to be inconsistent with a genuine fear of persecution or harm it may well be one which she is entitled to say is not satisfactory and lead to certification even if the claim is an asylum or Article 3 claim and there is some new element in it.

144. By contrast if there is a credible explanation as why some fact relevant to an asylum or Article 3 claim was not put forward, which if it were to be accepted as true might well result in a successful claim, the balance between the two considerations of public policy may shift in favour of the provision of a right of appeal and point to a conclusion that the power to certify is not exercisable either at the third stage because there is a satisfactory explanation or at the fourth stage because the discretion should be exercised against exercising the power to certify.

145. Although this latter point may be thought not to fall explicitly from the wording of the Act it is in my view one which is implicit given the background of the two strands of authorities to which I have referred, namely those which emphasise the duty of anxious scrutiny in Article 3 and asylum claims and those which emphasise both the flexible approach to be adopted to Ladd v Marshall principles and the need to construe narrowly provisions which purport to restrict access to courts in the context of such claims."

Stadlen J expressed his view of the required fourth test to be as follows:

"210. Section 96(1) and (2) thus provide explicitly and implicitly safeguards against possible breaches of a claimant's Article 3 and asylum rights explicitly in that the right of appeal cannot be precluded where in the opinion of the Secretary of State there is a satisfactory reason for the material not having been deployed earlier and, in my view, implicitly in the safeguard that the power to certify cannot be exercised and thus the right of appeal cannot be precluded without the exercise by the Secretary of State of a discretion. In my judgment it is in the context of those two safeguards that the evolving approach of the courts set out in the authorities to which Collins J referred can and should be applied. "

Ms Naik QC, for the Claimant, argues that I should, or could, go further than the approach identified by Stadlen J in the above case, so as to ensure the Administrative Court acts, as a public authority, in accordance with s.6 of the HRA. It is said that I should, therefore, consider whether there would be a breach of s.6 HRA by 'certification'. She argues that this is the effect of the decision of the Supreme Court in R (Kiarie) and R (Byndloss) v SSHD [2017] 1 WLR 2380 - a case concerning a different basis for 'certification' under s.94B NIAA.

Turning to the circumstances of this Claimant it is argued that she was a vulnerable individual. Quite apart from her physical medical conditions it was apparent to the Defendant from 30 March 2017 that she was claiming she had been the subject of torture as a child. However, the Defendant did not obtain a crucially important r.35(3) report, as she should have done to comply with her own published policies, which, it is argued, was necessary before making her decisions. Indeed, it was the Claimant who asked for one on 12 April 2017 (only as a result of advice from her solicitors) and it was not obtained until after the asylum claim had been determined. Further, during the lengthy 19 April 2017 interview the Claimant revealed for the first time that she had been the subject of rape when aged 10 and attempted FGM. Her demeanour was indicative of distress. These matters all warranted further investigation and consideration because the Defendant was obliged to have regard to all relevant factors in considering whether there was a satisfactory reason for the asylum claim not being made in 2015 and in deciding whether or not to exercise her discretion to 'certify' under s.96(2) NIAA.

Late disclosure of sexual identity should be approached with caution by a decision-maker – as is recognised by the EU Court of Justice in A, B, C v Staatssecretaris can Veiligheid en Justitie (Cases C-14813-C-150/13, paras 67-71). This has been reflected in the Defendant's 'Asylum Policy Instruction: Sexual Identity Issues in the Asylum Claim' (3/8/16). An example of how these issues can affect an applicant's disclosure is seen in R (Cham) v SSHD [2014] EWHC 4569 (Admin). It is argued that none of this proper caution appears to have been applied to the Claimant's case, but instead a decision made that she was not a lesbian on the basis of credibility alone from an inadequate, insensitive interview (viz. R (Sivakumar) v SSHD [2003] UKHL 14 and UNHCR Guidelines on Sexual Orientation/ Gender Identity Claims), without a Rule 35 report which would have provided some support for her account.

The Defendant failed properly to consider the prospects of the Claimant succeeding in an in-country appeal against her refusal of the asylum claim (with an independent Tribunal Judge reaching a different conclusion about the Claimant's credibility) before choosing to invoke the draconian consequences of 'certifying' the claim. The Claimant had never had any claim considered by a judge.

Ms Naik QC submitted that it was not right to say that the reason given by the Claimant for not having made her asylum claim in 2015 was to blame her former solicitors. It was much more nuanced than that. She was really saying that she did not have the information in 2015 to know that a claim based on her sexuality could give rise to an asylum claim. She did not tell her solicitors about her sexuality (which was a difficult thing for her to talk about anyway) because she did not know it could be relevant. Therefore, since she had not told her former solicitors about her sexuality, it would have been pointless asking them to respond to criticism of them for not making an asylum claim on the basis of it.

It is argued that the decision letter did not set out any adequate distinct analysis as to why the Defendant had chosen to exercise her discretion to 'certify', and arguably put the burden the wrong way around by saying in paragraph 136: "In further submissions you have offered no evidence why your claim should not be certified under s.96."

The Defendant's own Guidance document 'Late claims; certification under section 96' says this about the exercise of discretion:

"It is not sufficient just to say that consideration has been given to the exercise of discretion and the outcome of that consideration is that the case is certified. The decision letter must set out the factors taken into account when deciding whether to exercise the discretion to certify and the basis on which you concluded that it was right to certify in that case.

Factors to be considered are the:

a) Prospects of success at appeal for the underlying claim, particularly where asylum and Article 3 issues are raised …

b) Fact that a claimant may have lied previously should be taken into account but is not necessarily determinative."

Ground 2

It is argued that there was a failure of the Defendant to make a decision at all in relation to the Claimant's solicitor's request for a withdrawal of the s.96(2) certification, in the light of the additional material submitted. Instead the Defendant took it upon herself only to examine the material under paragraph 353 so as to consider whether it amounted to a fresh claim. The Defendant has done what her own Guidance on 'Asylum and human rights policy instruction. Further Submissions' says at paragraph 5.2 – "if a claim was certified under s.96…any further submissions must still be considered by applying paragraph 353".

In any event, the test for a fresh claim arguably has a lower threshold for the Claimant to meet. The court has to evaluate, using the Wednesbury test, whether the Defendant has applied anxious scrutiny to the question of whether, notwithstanding her rejection of the new submissions, those new submissions, taken together with the previously considered material, are capable of creating a realistic prospect of a grant of asylum if considered by an Immigration Judge. It is argued that they undeniably pass that test, not least because the new submissions provide further support for the Claimant's credibility as to her sexuality, her vulnerabilities and the reasons for her not mentioning these matters before. The material for consideration now included the Rule 35(3) report, the Claimant's medico-legal reports and a long, detailed statement from the Claimant. These provided information which was corroborative of her injuries, was consistent with her account and provided the basis for an explanation of her omission to make an asylum claim in 2015.

It is also suggested that the Defendant's further decision letter of 18 October 2017 did not say why a judge might not come to the conclusion to grant asylum on the basis of all of the new material, taken together with the previously considered material, which is a low threshold. It says that the Defendant does not believe the Claimant but does not say in terms that her account is incapable of being believed by a tribunal.

Ground 3

The Claimant submits that her case should never have been allocated to the Detained Asylum Casework track. The review of the general lawfulness of the DAC was addressed by Cranston J in Hossain & ors v SSHD [2016] EWHC 1331 (Admin). It was to be decided on a case by case basis if it was alleged an allocation to the DAC was unfair in a complex sexuality case.

It was for the Defendant to furnish herself with the right material to assess if a detained person is a 'person at risk', in particular in identifying those who have been the subject of torture. Nothing was done to ensure a Rule 35 Report was obtained in a timely fashion. The need for one should have been picked up several times and was not. These reports are the key safeguard to prevent people in detention being at risk of harm. Without such a report there will be no assessment. There is no question but that there were procedural errors. The Shaw Report has stated how vital these reports are and pointed to shortcomings in the Defendant's systems.

Those who have been the subject of torture would not normally be referred to the DAC. One of the important reasons for the procedures being properly followed is to consider whether an asylum claim can be determined fairly when a vulnerable person is being detained. That issue wasn't engaged with by the Defendant. If the court concludes there has been a breach of the Defendant's policy then it is entitled to conclude that the detention was not lawful.

Ground 4

When the Rule 35 report finally materialised on 12 May 2017, the Claimant submits that it did not address the prospective risk of harm that may be caused to the Claimant by her ongoing detention.

That omission was a failure of the clinician to complete the Defendant's template report in the terms required by her policy. Such a flaw therefore required the Rule 35(3) Report to be returned to the clinician for her to complete it as it should have been.

Had the Rule 35(3) Report addressed, as it should, the risk to the Claimant's mental health of ongoing detention the clinician would have / ought to have concluded that her risk of harm was properly assessed at 'Level 3'. That would have resulted in her being released from detention. Accordingly, the Claimant was unlawfully detained, for which she is entitled to substantial damages.

The best available evidence that ongoing detention would cause damage to her mental health is the fact of the severe depressive episode which materialised in August 2017.

The Defendant's arguments

Ground 1

Mr Sheldon, counsel for the Defendant, made much play of the importance of addressing the established facts available to the decision-maker when he rejected the asylum claim on behalf of the Defendant on 3 May 2017. The rejection of the asylum claim was one which he argues cannot possibly be challenged on public law grounds. It was a rational judgment, open to the fact-finder to make, on the appropriate material before him, following a fair process, in which the Claimant had the opportunity of presenting all that she wanted. The Claimant was presenting a claim of a completely different nature to that which she had put forward 2 years before (which had been presented back then in great detail with the use of specialist immigration solicitors). There was nothing about this completely new asylum claim (made less than 48 hours before she was due to be removed from the UK and returned to Nigeria) which gave any indication that she had been ashamed or culturally inhibited from mentioning in 2015 or at any other time.

Parliament would not have passed s.96(2) NIAA, with its purpose of removing any rights of appeal, unless it intended it to be used in appropriate cases. The Defendant clearly addressed all of the correct questions that needed to be decided in the decision letter and expressly refers to the case of J. The relevant factors were considered and those include an assessment of the strength of the claim to asylum.

When the Defendant had to consider whether there was a satisfactory reason for the Claimant's failure to make the asylum claim in a s.120 statement in 2015 (s.96(2)(c) NIAA) it is important to observe that the Claimant was blaming her former solicitors for this. The case of BT Nepal requires evidence to be provided that the allegations of misconduct have been put to the former representatives for their response, together with any such response. There was therefore no evidence to support an argument that solicitors misconduct could provide the 'satisfactory reason'.

Self-evidently the discretion as to whether to 'certify' under s.96(2) was considered by the Defendant and her decision is one which there is no proper basis for the Court to interfere with.

The argument put forward by the Claimant - to go further than the tests established by Stadlen J in the case of R (J), by trying to draw an analogy from R (Kiarie) and R (Byndloss) is wrong, because those appeals related to s.94B NIAA and a claim under Article 8 ECHR which includes an assessment of proportionality (which is for a court to make).

Ground 2

The approach taken by the Defendant was entirely the correct one when considering the 'fresh claim' issue. The case is on all fours with R (HN & SA) (Afghanistan) v SSHD [2016] EWCA Civ 123. The Defendant had to decide whether the new material was significantly different to the earlier material and then, if it was, consider whether all of the material now available creates a realistic prospect of success in a further asylum claim. That will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. If the Defendant is able to exclude that as a realistic possibility it can safely be said that there is no mischief in denying an opportunity of an independent tribunal considering it (paras 16 & 17 of HN & SA). It is an incorrect approach to examine and consider each item of new material individually, it is not the individual points that matter, but the amalgam of them all together - the hypothetical judge's likely reaction to those points in the round, leading to an overall conclusion. The challenge has to be to the rationality of the conclusion, not as to its correctness or otherwise (paras 83-85 of HN & SA). The new material didn't amount to very much. There may have been some poor points made in the 18 October 2017 decision letter and there may have been some patent errors in it, but there are plenty of good and correct points as well.

The Claimant does not have permission to argue the point asserted about the Defendant's failure to withdraw the s.96(2) certification on the basis of the additional submission of materials in September 2017. It is not in the Amended Grounds of Review and it does not even appear in the Claimant's skeleton argument. Therefore, the Court should decline to address the point.

Ground 3

The Defendant was not in breach of her policy in allocating the Claimant to the DAC. Case law has established that the DAC process is lawful and the proper categorisation of the Claimant's case did not necessarily require that she be excluded from it. When the particular facts of the Claimant's case are considered it cannot be argued that there are public law grounds for challenging the Defendant's decision.

She would have been asked on arrival in custody if she had been the victim of torture and she evidently did not do so.

In the light of the information which was available to the Defendant at the point of allocating her to the DAC there was nothing making it inappropriate to allocate her to that regime – she was an absconding overstayer with an imminent removal date and she had not made any 'protection' claims.

Thereafter, when she first made her asylum claim (2 days before removal), the Defendant had to assess her in the light of her claiming, for the first time ever, to have suffered brutal violence at the hands of her parents 20 years ago because of a sexual encounter with another 14 year old girl, since which time she had finished her schooling in Nigeria, undertaken a first degree, worked in a job, travelled to the UK for a further degree level course funded by her father, married, separated, ceased her studies, had an application for leave to remain certified as clearly unfounded and then absconded for nearly 2 years. It was perfectly justifiable to allocate the Claimant to the DAC in her circumstances.

Ground 4

She was seen frequently in healthcare after being detained and was appropriately categorised as a person at Risk Level 2. Apart from the treatment of physical complaints, there was not the slightest issue identified of her having mental health issues or being posed a higher level of risk by facing ongoing detention.

The delay in securing a Rule 35 Report had no practical effect on the decisions made, on perfectly adequate evidence, concerning her continued detention.

When Dr Babalola did provide a Rule 35(3) Report it addressed the relevant matters and provided the assessment which the text of the Defendant's policy document required. Although the template letter for clinicians to use also encompasses a request for a prospective assessment of the likelihood of harm to the subject's mental health from ongoing detention, which, strictly construed, Dr Babalola's report did not expressly provide, it is utterly inconceivable that Dr Babalola did not consider it. She was only obliged to record positive concerns and if she had had such concerns she would obviously have included them.

It is not part of the Defendant's public law duties to have Rule 35 Reports pored over and analysed to consider whether the doctor's phraseology might have omitted to record a negative finding - to the effect that there was no significant problem to be anticipated with the subject's ongoing detention. The Defendant did not breach any public law principles by concluding that this Rule 35 Report was explaining that detention was not causing the Claimant's mental health symptoms (they were longstanding) and they could be addressed, if the Claimant wished to, by some talking therapy.

It was several months later that the Claimant's mental health deteriorated and it is not possible, nor appropriate, to seek to argue in the light of hindsight that her severe depressive episode in August 2017 was something which Dr Babalola would have predicted if the Rule 35 Report had been returned to her in May 2017 for further clarification.

Conclusions

Ground 1

There is no issue between the parties that the first two of the pre-conditions for 'certifying' the Claimant's asylum claim were fulfilled (those in s.96(2)(a) and (b) NIAA). The Secretary of States' decision that the pre-condition in s.96(2)(c) was also fulfilled was not 'unreasonable' in my view on Wednesbury grounds. However, I do conclude that her decision-maker failed to exercise the necessary anxious scrutiny required before exercising the discretion to 'certify' a claim for asylum of this sort, involving as it does the complexities which have been set out in my summary of the background facts to this case. The decision letter put the matter of the Defendant's discretion completely the wrong way around when it stated: "You have offered no evidence why your claim should not be certified under S96."

Therefore, whilst the fulfilment of the three statutory pre-conditions for an exercise of the Defendant's discretion to 'certify' the Claimant asylum claim under s.96(2) NIAA cannot be challenged in the circumstances of this case on public law grounds, nevertheless, in my view the Defendant failed properly to exercise her discretion whether or not to 'certify' the claim, either in a rational way, or at all. The case is on all fours with the scenario painted by Stadlen J in the case of R (J) at paragraphs 139, 140 & 144.

This was a case in which the assessment of the credibility of the Claimant was critical in the exercise of the Defendant's discretion. There are a number of concerning features about the way in which her claim was investigated and considered, most significantly: (1) the failure of the Defendant to obtain a Rule 35 Report before making a decision; and (2) the manner in which the questioning was conducted in her asylum interview, given that this was someone who was speaking of significant incidents of trauma in her life which potentially may have left her vulnerable and less able to express herself with the conviction which the decision-maker was evidently expecting during his confrontational approach.

Consequently, I find in favour of the Claimant on this Ground and conclude that the decision to certify her claim under s.96(2) NIAA, in the particular circumstances of this case, was one which failed properly to address and exercise the Defendant's discretion in the way required of a reasonable decision-maker.

Ground 2

I accept the Defendant's argument that the Claimant does not have permission to pursue a point about the omission of the Defendant to consider a request to withdraw her 'certification' of the Claim in the light of the additional materials she provided in September 2017. However, the public law test governing the assessment of additional materials and whether it gives rise to a fresh claim for asylum (which was the test which the Defendant stated she intended to apply) presents a lower hurdle to a Claimant. Therefore, the Claimant is not prejudiced in any way by the Defendant's approach to the matter.

There is no significant difference between the parties about the test which has to be applied by the Defendant when she assesses whether newly submitted materials amount to a fresh claim for asylum. I have to consider in these judicial review proceedings whether the Defendant has acted irrationally or unreasonably (in a Wednesbury sense) in that assessment.

I do not accept the Claimant's argument that the Defendant failed to give any reasons as to why a Tribunal Judge might not accept her claim on the basis of the new materials (together with the previous materials). It is clear enough from the October 2017 decision letter that the Defendant is saying that in her view the Claimant would be incapable of being believed. However, was that a rational decision, if the Defendant truly was exercising anxious scrutiny about how a Tribunal Judge might assess the credibility of the Claimant and her case?

It concerns me that the last sentence of paragraph 5 of the 18 October 2017 Decision Letter overwhelmingly suggests that it was drafted before receipt of the Claimant's second witness statement 26 September 2017, her solicitor's statement 16 September 2017 and the Claimant's medico-legal reports 24 and 27 September 2017. It reads as follows:

"It should be noted that in your statement dated 21-08-2017 you indicated that you would be submitting a further statement, but despite a specific request through your solicitors for such a statement to be provided by 21-09-2017, no such statement or additional evidence has been provided."