Atkinson v Secretary Of State For Home Department

Certification of a human-rights claim as clearly unfounded is a screening decision. Under the Nationality Immigration and Asylum Act 2002, the threshold is high: the claim must be bound to fail, and a legitimate route to success prevents certification.

For an Article 3 claim based on harm by non-state actors, sufficiency of protection requires a reasonable and practical system which the receiving state is willing and able to operate. It is not a guarantee against every failure or risk. Evidence of systemic inability affecting the relevant class may nevertheless establish insufficiency. The court quashed certification because state protection and internal relocation raised serious questions.

The appellant, a Jamaican national, overstayed after being admitted as a visitor and claimed asylum following alleged attacks and threats from JLP-linked gangs. The Secretary of State rejected his asylum and human-rights claims and certified them under section 94 of the Nationality Immigration and Asylum Act 2002 as clearly unfounded, removing his in-country right of appeal. Mr Michael Supperstone QC, sitting as a Deputy High Court Judge in the Administrative Court, upheld the certification on 10 October 2003.

The appeal concerned Article 3 of the Human Rights Convention. The central issues were whether Jamaica provided sufficient protection against non-state actors and whether internal relocation was a viable alternative.

Scott Baker LJ delivered the principal judgment. Wall and Thorpe LJJ agreed with it. The appeal was allowed, the application for judicial review succeeded, and the Secretary of State’s certification was quashed.

1. Certification threshold. Certification under section 94(2) of the Nationality Immigration and Asylum Act 2002 is a screening process rather than a full merits review. The decision-maker must consider the claim’s factual substance and detail, relevant background material, whether it is capable of belief in whole or in part, and whether it could fall within the relevant protection framework. The claim is clearly unfounded only where it cannot on any legitimate view succeed. The court applied the guidance in R (on the application of L and another) v Secretary of State for the Home Department [2003] 1 ALL ER 1062 and R v Secretary of State for the Home Department, ex p Thangarasa, ex p Yogathas [2002] 3WLR 1276.
2. Judicial review. The reviewing judge had to assess whether the Article 3 claim was bound to fail and how an appeal to an adjudicator would be likely to fare. The judge was not confined to asking whether the Secretary of State had reached a conclusion that was merely open to him. The court treated the approach as confirmed by Razgar [2004] UKHL 27.
3. State protection. In a non-state-actor case, sufficiency of protection depends on the receiving state’s willingness and ability to provide reasonable, practical protection against the identified risk. The standard is not a guarantee against all attacks or the eradication of risk. Individual failures, incompetence or an inability to eliminate every risk are insufficient alone. A systemic failure affecting at least a relevant category, such as informers or perceived informers, may show that the state cannot perform its basic protective function.
4. Application. Jamaica’s willingness to tackle gang violence was not substantially disputed, but its ability to provide basic protection was seriously in issue. The expert evidence raised a legitimate possibility that the appellant’s Article 3 claim could succeed. Internal relocation likewise could not be rejected as clearly unfounded, given evidence concerning the reach of criminal gangs, Jamaica’s size, the difficulty of concealing identity, limited social and economic support, and risks to those offering shelter.
5. Effect of the order. The decision was limited to certification. Quashing the certificate restored the appellant’s right to appeal to an adjudicator; it did not determine whether he would ultimately succeed on the merits. The respondent was ordered to pay the appellant’s appeal costs, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division) — [2004] EWCA Civ 846; appeal allowed, judicial review granted and the certification under section 94(2) of the Nationality Immigration and Asylum Act 2002 quashed.
• Administrative Court, Queen’s Bench Division — On 10 October 2003, Mr Michael Supperstone QC, sitting as a Deputy High Court Judge, refused the application for judicial review and upheld the certification.