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

A claim is “clearly unfounded” only where it is bound to fail before an immigration judge, or cannot succeed on any legitimate view. The assessment is objective and requires careful scrutiny, but remains a screening exercise. A State’s duty to provide practical protection does not ordinarily require it to protect police officers or soldiers from risks arising from the protection they provide to citizens against insurgents. The same contextual approach applies to Articles 2 and 3 of the ECHR. Past attacks on security officers do not, without more, establish inadequate State protection. The claimant must identify evidence showing that the protection available is not practical and effective, and must address the viability of internal relocation.

The claimant, a Sri Lankan police intelligence officer, challenged the Secretary of State’s certification of his asylum and human-rights claims as clearly unfounded under section 94 of the Nationality Immigration Appeals Act 2002. He feared attack by the LTTE because of his intelligence work and argued that the Sri Lankan authorities could not provide adequate protection or a safe internal relocation option.

The Secretary of State relied on the principle that risks arising from service in a State’s security forces do not ordinarily found protection claims, and disputed the evidence of insufficient protection. The central issues were whether the certification test was satisfied, whether that principle applied to the ECHR claim, and whether the claimant had shown that protection or internal relocation was inadequate.

1. The claim was dismissed. The claimant’s asylum and ECHR claims were bound to fail before an immigration judge and were therefore lawfully certified as clearly unfounded.
2. The governing test under section 94 of the Nationality Immigration Appeals Act 2002 was objective. The court could readily re-apply it once it had the material available to the Secretary of State. The test required careful scrutiny because of the seriousness of the subject matter, but certification remained a screening process.
3. The court followed and applied Fadli [2000] EWCA Civ 297. Its ratio was not confined to serving soldiers. A State must use police and military forces to protect citizens against internal enemies, and the State’s duty does not extend to risks arising from the protection those officers provide to fellow citizens. The heightened risk faced by a police intelligence officer because of service against the LTTE was not materially different from the risk considered in Fadli.
4. Articles 2 and 3 of the ECHR contain fundamental values but must be interpreted within the Convention’s wider framework and in the circumstances of the individual case. The content of reasonable protection may differ according to the person’s role and the obligations legitimately imposed on members of security forces.
5. The evidence did not show that Sri Lanka was unwilling or unable to provide practical protection. The claimant had been relocated in the course of his service and given a pistol and hand grenade. The fact that LTTE attacks had succeeded against some intelligence officers did not, without more, establish a failure to provide appropriate protection, applying Bagdanavicius [2005] 2 App 668.
6. The evidence also failed to establish a real risk in Colombo or another proposed area of internal relocation. The expert reports identified no sufficient evidence that former intelligence officers faced such a risk there.