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

When reviewing a certification that an asylum or human rights claim is clearly unfounded, the court must ask whether, on at least one legitimate view of the facts or law, the claim may succeed. The claimant’s account is ordinarily taken at face value at this stage, unless it is obviously impossible. The court should not finally determine credibility or disputed facts. Expert evidence must be properly supported and reasoned; speculative conclusions and materially misleading reliance on outdated evidence may be rejected. Internal relocation may defeat a claim where a claimant can reasonably move elsewhere in the country, even if registration or de-registration is required. Where the certification is lawful, the judicial review claim should ordinarily be dismissed.

The claimant, a Ukrainian national and supporter of the Rukh political party, sought judicial review of the Secretary of State’s certification under section 94 of the 2002 Act that his asylum and human rights claims were clearly unfounded. He alleged that Ukrainian police had detained and ill-treated him because of his political activities before the election of President Yushchenko.

The claimant relied on expert evidence concerning continuing police corruption, the political situation after the election and the practical operation of Ukraine’s registration system. The central issues were whether the claim might succeed on at least one legitimate view of the facts or law, whether the expert evidence supported a continuing risk, and whether internal relocation was reasonably available.

1. Certification test. The court applied the approach in ZL and VL v Secretary of State for the Home Department [2003] EWCA Civ 25. The decision-maker must consider the factual substance and detail, the known background material, whether the account is capable of belief, whether any part may be believed, and whether the claim could fall within the Refugee Convention or Human Rights Convention. If the claim may succeed on at least one legitimate view of the facts or law, it is not clearly unfounded.
2. Judicial review remained review rather than appeal, but the court had to consider the claim on that basis. The claimant’s account was therefore accepted at face value unless it was obviously impossible. Final credibility findings were matters for a later appeal or tribunal.
3. The expert’s conclusions about continuing persecution were speculative and unsupported by the material relied on. His treatment of communications concerning the propiska system was materially misleading, and his conclusions did not establish a continuing risk after the political change in Ukraine.
4. The decisions in IB [2005] UKIAT 00095 and VS v Ukraine [2004] UKIAT 00242 did not establish that internal relocation necessarily required police de-registration in a manner exposing a claimant to persecution. In any event, Ukraine was sufficiently large to provide places of relocation, and registration requirements did not make relocation unreasonable.
5. The Secretary of State was entitled to certify the claim as clearly unfounded. The claim for judicial review was dismissed. No order for costs was sought, and detailed assessment and public funding were permitted.