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

For certification purposes, a claim is not clearly unfounded if, on at least one legitimate view of the facts or law, it may succeed. The court must assess the risk on the facts and in the place of return identified by the Secretary of State. A finding that some low-profile persons may be at risk does not establish that all, or most, such persons are at risk. A country-guidance decision is not binding on the law or facts, but should normally be followed unless the case falls outside its ambit, relevant new material was unavailable, or circumstances have materially changed. General evidence of inadequate state protection does not itself establish a Convention claim founded on risk from a non-state actor.

The claimant, an asylum seeker from Sri Lanka, challenged the Secretary of State’s certification of his protection claim as clearly unfounded. The original decision preceded R (on the application of) Sinnarasa v the Secretary of State for the Home Department [2005] EWHC 1126, but the Secretary of State subsequently reconsidered the matter in light of that decision.

The claimant accepted that he was not a high-profile target, but argued that he was arguably at risk from the LTTE as a perceived renegade or traitor. The central issue was whether there was any realistic possibility of success before an immigration judge if he were returned to Colombo, rather than to eastern Sri Lanka.

1. The claim and permission application were dismissed. The claimant had not shown even a possibility that his protection claim could succeed before an immigration judge. The application for permission to appeal was refused, and there was no order for costs save detailed assessment of the claimant’s publicly funded costs.
2. The applicable certification test was whether, on at least one legitimate view of the facts or law, the claim might succeed. Equivalently, the claim must not be so wholly lacking in substance that it is bound to fail. The court had to consider the asserted facts, while identifying the place of return and assessing the risk there.
3. The court accepted that the claimant could arguably have been targeted by the LTTE in the east as a perceived renegade or traitor. That did not establish a comparable risk in Colombo. The evidence and country guidance did not identify persons with his characteristics as a relevant target group there.
4. The rejection of the proposition that only high-profile targets could be at risk did not entail that all or most low-profile targets were at risk. The decision in re PS Sri Lanka CG [2004] UKIAT 00297 was not binding on the law or facts, but an immigration judge would normally depart from country guidance only where the case fell outside its ambit, relevant material had not previously been considered, or circumstances had moved on.
5. The later UNHCR letters did not engage with the Tribunal’s detailed criticisms of its earlier background paper and did not undermine the factual analysis in re PS Sri Lanka CG. The more recent reports concerning general failures of state protection addressed a different issue and did not, without more, establish a Convention risk from the LTTE.