High Court quashes Secretary of State’s decisions to certify asylum claim and reject further submissions of LGBT torture victim

Tuesday 5 June 2018

Garden Court’s Sonali Naik QC and Emma Fitzsimons represented the claimant, instructed by Sulaiha Ali of Duncan Lewis Solicitors.

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Following a successful judicial review challenge, the High Court has quashed two decisions of the Secretary of State for the Home Department.

The claimant, a Nigerian national, made a claim for asylum on the basis of her sexual orientation. She also disclosed to the Home Office that she had been a victim of torture and FGM. Despite these disclosures, she was not referred for a Rule 35(3) report. There were troubling aspects of her asylum interview: she was interviewed in detention by a male interviewing officer; she was demonstrably upset in interview, and had disclosed a very traumatic account, which included childhood sexual abuse and torture.

Her claim was certified under section 96 of the Nationality, Immigration and Asylum Act 2002, on the basis that she should have made her claim earlier, when served with a one-stop notice. She was denied any right to appeal to the independent Tribunal, and removal directions were set. A judicial review claim was brought, challenging the certification decision and detention.

Interim relief was granted by the High Court, and her removal was deferred pending the examination of her claim. She was released as removal was no longer imminent.

In the meantime, the claimant was able to make further submissions supported by detailed witness evidence from both the claimant and her solicitor, and two medico-legal reports. This material provided corroborative evidence of her account of having been tortured, as well as evidence that could plausibly explain late disclosure. The Secretary of State refused to accept that these further submissions met the fresh claim test.

After a two-day substantive hearing, the High Court found in the claimant’s favour on both the certification and fresh claim challenges.

On certification, the Court found that the Secretary of State had failed to exercise her discretion lawfully, in accordance with the fourth stage identified in R(J) v SSSHD [2009] EWHC 705 (Admin). The Court was concerned by the failure to obtain a Rule 35 report before making a decision to certify the claim, and the conduct of the asylum interview.

In respect of the further submissions, the Court found that the refusal letter had “the flavour of someone trying to find justifications for upholding their earlier decision.” The refusal to accept the further submissions was found to be irrational, as it could not be said that an independent Tribunal Judge would not be entitled to take a different view to the Secretary of State on the claimant’s credibility.

The claimant’s detention challenge was dismissed, and is currently on appeal.

The final judgment is available on bailii.

Sonali Naik QC and Emma Fitzsimons are members of the Garden Court Chambers Immigration Team.

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