Bagdanavicius & Anor, R (on the application of) v Secretary of State for Home Department

The test for a claim certified as “clearly unfounded” is objective. The court must ask whether, on the material available, the claim is bound to fail. Certification is impermissible if there is at least one legitimate view of the facts or law on which the claim may succeed.

In non-state-agent cases, sufficiency of protection is assessed by the practical standard established in Horvath v Secretary of State for the Home Department [2001] 1 AC 489. Protection need not eliminate every risk of ill-treatment. The relevant question is whether the state provides a system of protection and is reasonably willing and able to operate it, having regard to the level of risk.

The claimants, Lithuanian citizens and members of a mixed Roma/non-Roma family, sought asylum and relied also on articles 3 and 8 of the European Convention on Human Rights. They alleged ill-treatment by a relative and associates connected with organised crime, discrimination against Roma, and ineffective police protection.

The Secretary of State refused the claims and certified them as clearly unfounded under section 115 of the Nationality, Immigration and Asylum Act 2002, because Lithuania was a listed state. Following further evidence and representations, the Secretary of State maintained the certification.

The claimants sought judicial review, challenging the treatment of expert evidence, sufficiency of protection, credibility, internal relocation, the adequacy of the reasons, and the human-rights assessment. The central issues were whether the certification test was correctly applied and whether the claims were bound to fail before an adjudicator.

1. Outcome. The application for judicial review was dismissed. The claims were clearly unfounded within section 115 of the Nationality, Immigration and Asylum Act 2002. Permission to appeal was granted only on the issue of sufficiency of protection.
2. Objective certification test. The court was as well placed as the Secretary of State to decide whether a claim was clearly unfounded. The question was whether, after considering the material, the claim was bound to fail. If at least one legitimate view of the facts or law could permit success, certification was unavailable. This approach followed ZL and others v Secretary of State for the Home Department [2003] EWCA Civ 25 and the cognate reasoning in R (Yogathas and Thangarasa) v Secretary of State for the Home Department [2002] UKHL 36.
3. Sufficiency of protection. The court rejected the claimants’ submission that protection was sufficient only if it ruled out the reality of any risk of ill-treatment. Under Horvath v Secretary of State for the Home Department [2001] 1 AC 489, the state’s duty is to establish and operate a system of protection with reasonable willingness. The standard is practical and does not guarantee complete protection against isolated or random attacks. The same test applied to the human-rights claims under articles 2 and 3. R (Dhima) v Immigration Appeal Tribunal [2002] Imm AR 394 did not support the contrary “reality of the risk” formulation.
4. Application to the evidence. The Secretary of State’s initial dismissal of the expert report was misguided, but the later decision gave a reasoned and legally open rejection of its significance. The claimants’ accounts contained substantial inconsistencies, vagueness and implausibility. Even taken at their highest, the alleged incidents did not establish that internal relocation was unavailable or that Lithuanian authorities could not provide sufficient protection. The threshold of severity under the Refugee Convention and article 3 was not shown to be capable of being met.

First-instance judicial review in the Administrative Court. The application was dismissed. Permission to appeal was granted on the legal issue of sufficiency of protection, but refused on the other grounds.