Atkinson, R (On the Application Of) v Secretary of State for the Home Department

Certification of an asylum or human-rights claim as clearly unfounded is a screening decision. The decision-maker must assess the claim’s factual substance, background evidence and Convention relevance, including any credible part of the claim. Certification is lawful only where the claim cannot succeed on any legitimate view. Past torture does not create an automatic statutory exception. Sufficiency of protection requires a practical system of criminal law enforcement, with reasonable willingness and ability to detect, prosecute and punish persecutors; complete protection is unnecessary. The assessment is fact-sensitive. Internal relocation may answer the risk where relocation would not be unduly harsh. A claim based on perceived homosexuality requires evidence of a substantial risk of persecution, discrimination, violence or abuse beyond the mere existence of criminalising legislation.

The claimant, a Jamaican national, sought judicial review of the Secretary of State’s refusal of his asylum and human-rights claims and certification of them under section 94(2) of the Nationality Immigration and Asylum Act 2002. He feared persecution as an alleged informer for the People’s National Party and as a person perceived to be homosexual. The issues were whether Jamaica afforded sufficient protection and whether internal relocation was available. The claimant accepted that Jamaica’s designation under section 94(5) was lawful.

1. Disposition. The application for judicial review was dismissed. The Secretary of State had committed no error of law and the claims were clearly unfounded.
2. Screening test. Applying R (on the application of L and another) v Secretary of State for the Home Department (2003) 1 All ER 1062, the decision-maker must consider the factual substance and detail, the known background, whether the claim is capable of belief, any credible part of it, and whether it could fall within the Refugee Convention. The claim is clearly unfounded only if it cannot succeed on any legitimate view. The process is not a full merits review, consistently with R v Secretary of State for the Home Department, ex p Thangarasa, ex p Yogathas (2002) 3 WLR 1276.
3. Torture. The seriousness of alleged past ill-treatment must be assessed, but the statute contains no automatic torture exception. Creating one would impermissibly add to section 94.
4. Protection. Under Horvath v Secretary of State for the Home Department (2001) 1 AC 489, protection is sufficient where there is a practical system of domestic protection and a reasonable willingness by law-enforcement agencies to detect, prosecute and punish serious attacks. The standard is not a guarantee against all violence. The same approach applies to Article 3 claims. On the evidence, Jamaica provided sufficient protection. The claimant had not reported the attacks and had not shown that reasonable protective measures were unavailable.
5. Perceived homosexuality and relocation. The claim based on perceived homosexuality lacked the required substantial factual substratum. The evidence did not establish a substantial risk of Article 2 or 3 ill-treatment. The protection and relocation assessments were fact-sensitive. The evidence showed that the alleged threats were principally local and that relocation to an area with less gang violence would not be unduly harsh. The claimant could therefore relocate within Jamaica.
6. Costs. The Secretary of State’s costs were ordered to be determined under the Access to Justice Act 1999, with liberty to apply within seven days and the usual legal-aid order subject to lodging the certificate.