Bazdoaca, R (on the application of) v Secretary of State for the Home Department

A claim may be certified as clearly unfounded where, taking the claimant’s account at its highest, the evidence could not properly support a finding of a real risk of persecution or treatment contrary to Article 3. Isolated violence, serious discrimination or social intolerance will not necessarily meet that threshold. The reviewing court applies an appropriately intensive review because certification may lead to removal and engage fundamental rights, but it does not re-determine the merits. Relocation may be relevant where the evidence shows that protection and circumstances materially differ within the receiving state. The question is whether an adjudicator, correctly applying the law, could legitimately find a real risk. Where the evidence shows no concerted or systematic persecution and indicates effective state protection, certification under section 94(2) may be justified.

The claimant, a homosexual man from Moldova, sought judicial review of the Secretary of State’s decision to certify his asylum and human rights claims as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002. His account of past insults and violence in Balti, and of his fear of inadequate police protection, was accepted for present purposes.

The Secretary of State relied in part on the claimant’s ability to relocate to Chisinau. The central issue was whether there was any real possibility that an adjudicator applying the law correctly could find a real risk of persecution or a breach of Article 3 if the claimant were returned to Moldova.

1. Claim dismissed. The Secretary of State’s certificate under section 94(2) of the Nationality, Immigration and Asylum Act 2002 was justified. No order for costs was sought, and detailed assessment of the claimant’s legally aided costs was directed.
2. The governing threshold was whether the claimant reasonably feared persecution or faced a real risk of treatment contrary to Article 3. Isolated acts of violence, general discrimination and intolerance, without more, were insufficient. The seriousness of the anticipated conduct was illustrated by L [2003] 1 WLR 1230, which showed that even a horrifying isolated experience might not justify asylum or prevent certification.
3. The court’s function was supervisory, but review required appropriate intensity because certification could lead to an irrevocable removal decision engaging fundamental rights. The practical question was whether an adjudicator, correctly applying the law, could legitimately find a real risk. The general exposition in Bagdanavicius [2004] 1 WLR 1207 was treated as helpful.
4. The evidence concerning Chisinau showed discrimination and intolerance, but no concerted or systematic attacks or persecution. It also showed openly conducted gay events, clubs and campaigning activity, together with police intervention to prevent violence at a public Pride event. That evidence was inconsistent with a real risk of persecution or Article 3 treatment in Chisinau.
5. The evidence concerning the claimant’s home town and the provinces did not establish that relocation to Chisinau would expose him to the feared harm. The court therefore concluded that there was no arguable case to put before an adjudicator and no irrationality or other ground for interfering with the certificate.