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

Certification as clearly unfounded is appropriate only where the asylum or human rights claim cannot succeed on any legitimate view. The decision-maker must assess the substance and detail of the claim, the background evidence, its overall credibility, any credible part, and whether the claim could fall within the Convention. The assessment must remain practical and non-mechanical. Where the evidence raises a real argument about future risk and the sufficiency of state protection, unresolved uncertainty may prevent certification. State protection need not be guaranteed, but the evidence must be sufficiently clear before a claim involving an identified individual risk can properly be treated as wholly unarguable.

The claimant, a Kosovan national, sought judicial review of the Secretary of State’s decision certifying his asylum and human rights claim under section 94 of the National Immigration and Asylum Act 2002. His claim arose from his evidence at the trial of a man accused of murdering his brother. The accused was acquitted, and the claimant feared reprisals on return because protection previously provided during the trial might no longer be available.

The central issue was whether the Secretary of State had been entitled to conclude that the claim was clearly unfounded, so as to deprive the claimant of an in-country appeal.

1. Application allowed. The Secretary of State was wrong to certify the claim as clearly unfounded.
2. The governing approach requires consideration of the factual substance and detail of the claim, the known background data, whether the claim is capable of belief in whole or in part, and whether, if believed, it could fall within the Convention. A claim is unfounded only where it cannot succeed on any legitimate view. The assessment is not a mechanical exercise.
3. The claimant had established a real argument that he faced an individual risk on return. His evidence linking the alleged perpetrator to his brother’s murder was materially different from that of other family members. There was also evidence of intimidation during the trial and uncertainty about the continuation of protective measures.
4. Although the burden of establishing the claim remained on the claimant, the certification process required greater clarity before the claim could be treated as wholly unarguable. The Secretary of State had not made an apparently straightforward enquiry about the protection available pending the appeal against the acquittal. That omission prevented reliance on the claimant’s failure to prove that protection would be unavailable.
5. The sufficiency of state protection does not require a guarantee, consistently with R(Bagdanavicius) v Secretary of State for the Home Department [2003] EWCA Civ 1605. However, the evidence here required fuller consideration. Internal relocation was also not necessarily sufficient where the claimant had previously lived elsewhere only while effectively in hiding.
6. The court expressly confined its decision to the particular facts and did not seek to add to the established jurisprudence on the section 94 test, state protection or internal relocation.

First-instance judicial review proceedings. The judgment records that Crane J had previously granted permission because the claim was arguable. No earlier substantive judgment or appeal citation is stated.