QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy Judge of the High Court)
| R (on the application of ROO [NIGERIA])
- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Neil Sheldon (instructed by the Government Legal Department) for the Defendant
Hearing dates: 24 and 25 April 2018
Crown Copyright ©
His Honour Judge Blair QC :
The background history to the claim
"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.
"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."
"I'm not happy here. I have females around me – do not want this to affect my case."
"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)"
"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."
"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."
"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 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."
"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 relevant procedural history of the application for Judicial Review
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
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).
"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  EWCA Civ 13 , in distinguishing dicta of Lord Bridge of Harwich in Al Mehdawi v Home Secretary  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."
"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. "
"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."
The Defendant's arguments
"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."
The terms of the Order of the Court