Case No. UKUT-00677-(IAC)

(discretion; when reviewable) [2012] UKUT 00307 (IAC). 49. We are not persuaded that either of these decisions assists his case. 50. As regards JR , the certification power in issue in that case was that under s.96(1) of the 2002 Act which applies when a person has relied on a matter that could have been raised in an appeal against the old decision and in the opinion of the Secretary of State there was no satisfactory reason for the matter not having been so raised in an appeal against the old decision. On Stadlen J’s analysis, before the Secretary of State can lawfully decide to certify, she has to go through a four-stage process. The first two relate to notification and reliance. The third is that the Secretary of State must form the opinion that there is no satisfactory reason for the matter not having been raised in a previous appeal or previous s.120 statement. The fourth is stated at [106] as being: “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 her favour”. Stadlen J also considered this exercise had to be informed by anxious scrutiny (e.g. [124]). 51. This brief synopsis suffices to point up obvious differences between the ambit and context of the process to certify under s.96 on the one hand and that relating to process to certify under regulation 24AA on the other. The former has the effect of negating a right of appeal of any kind completely; whereas the latter only means it is non-suspensive since it does not even prevent the appeal against the EEA decision to remove/deport being in-country for the purposes of an actual hearing. 52. As regards Ukus 53. Even if we regarded Mr Malik as being right to say that the principles enunciated in these two cases had direct or even analogous application to regulation 24AA, it is clear from Kiarie and Byndloss that unless their breach could be shown to have a material bearing on the outcome of the case, it would not give rise to a public law error. 54. For completeness we record that we reject also the applicant’s grounds as originally pleaded. 55. For the above reasons, we conclude that this application for judicial review must fail. 56. The interim injunction granted to the applicant at an earlier stage of this case (see [21] above) hereby ceases to have effect. 57. If agreement cannot be reached as to costs the parties are directed to make any submissions regarding costs in writing within 14 days of this judgment being handed down. Signed Dr H H Storey, Judge of the Upper Tribunal