Reported Case

The High Court ruled in favour of the Claimant by concluding that the Secretary of State for the Home Department (SSHD) had failed to exercise ‘anxious scrutiny’ before certifying her asylum claim under s.96 (2) Nationality, Immigration and Asylum Act 2002 (NIAA). The court also found that the SSHD’s subsequent paragraph 353 refusal was irrational as it had ‘the flavour of someone trying to find justifications for upholding their earlier decision’.

History of the Case

This case concerns a female Nigerian national who claimed asylum on the basis that she was a lesbian: her account was that her family had caught her with another girl when she was a teenager and tortured her. She was subjected to female genital mutilation (FGM) as a means of punishment/control and she subsequently lived discreetly in Nigeria due to fear. She came to the UK to study and was pressurised by her family to get married. She decided to marry an EEA national in the UK, rather than return to Nigeria. The marriage broke down and she made an application for leave to remain on the basis of private life. This was refused with an out-of-country right of appeal. She remained in the UK, until the immigration authorities found her.

Her claim was rejected by the Defendant on credibility grounds and certified under section 96 NIAA 2002, on the basis that she previously had been served a one-stop notice and had not claimed asylum earlier. After the decision to certify her claim was made, a Rule 35(3) report confirmed that she may be a victim of torture and an Adult at Risk at Level 2.

Judicial Review proceedings were issued to challenge the SSHD’s decision to certify the Claimant’s asylum claim and their decision to detain her under the Detained Asylum Casework process despite her vulnerabilities and the complexity of her claim. During the course of the proceedings, the SSHD invited the Claimant to submit further evidence in relation to her claim and released her from detention as her removal was no longer imminent. The evidence later submitted by the Claimant consisted of detailed statements from the Claimant and her solicitor, along with expert medical evidence which confirmed that the Claimant was most likely a victim of an unsuccessful FGM procedure, that she was a likely victim of torture as she had 46 visible recorded scars on her body, and that she was suffering from severe depressive disorder with psychotic symptoms associated with PTSD.

By way of a decision letter dated 18 October 2017, the SSHD refused to accept that the Claimant’s further evidence amounted to a fresh claim, and refused to withdraw the s.96 certificate. The Claimant amended her grounds to include this in the proceedings.

Representation

The Claimant was represented by Sulaiha Ali from our public law team in Harrow, and Sonali Naik QC and Emma Fitzsimons of Garden Court Chambers.

Judgment

This case is exemplary of poor decision making by the SSHD and their failure to take critical issues into account when considering protection based claims.

In his judgment, HHJ Blaire QC (sitting as Deputy Judge of the High Court) ruled that:

‘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’

In respect of the fresh claim decision, he went on to rule that:

‘…These matters all drive me to the conclusion that the Defendant's decision to refuse to accept that the additional supplied material amounted to a fresh claim under paragraph 353 of the Immigration Rules was irrational or 'unreasonable'…They have, instead, the flavour of someone trying to find justifications for upholding their earlier decision.’

The Home Office’s decisions were declared unlawful. A fresh claim decision had ‘the flavour of someone trying to find justifications for upholding their earlier decision’. The importance of Rule 35 & the process of asylum interviews have also been criticised. Whilst the Claimant seeks to appeal the High Court’s decision with respect to her challenges to detention, the impact of this decision should not be minimised and instead should be regarded as a stark reminder to decision makers who ignore the vulnerabilities of asylum seekers when considering their claims.

Sulaiha Ali is specialised in immigration and asylum law, with significant experience in unlawful detention / False imprisonment claims, trafficking and gender based violence matters, and assisting unaccompanied minors and other vulnerable clients. Sulaiha often engages in pro bono work and assists clients with Exceptional Case Funding applications for those who require legal representation for matters not covered by legal aid.

For expert advice on immigration and detention matters, contact Sulaiha on 020 3114 1163 and sulaihaa@duncanlewis.com.

Duncan Lewis Public Law Solicitors

The Duncan Lewis Public Law department is recommended in The Legal 500 2017 edition for its specialism in judicial review and Court of Appeal cases. The Public law team is well established with experience in all aspects of judicial review claimant work, including obtaining emergency orders and other interim relief to prevent breaches of human rights, pursuing actions for damages in both the County and High Court and successfully bringing judicial review matters to the Court of Appeal and Supreme Court.

Duncan Lewis Public Law solicitors carry out both publicly and privately funded work and can be contacted on 0333 772 0409.

Find full details of this case on Bailii’s website here.