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

A claim is clearly unfounded only where, having considered its practical substance, detail and the known background evidence, it cannot succeed on any legitimate view. In a claim based on harm by non-state agents, the relevant question is whether the state provides reasonable protection against that harm. A judicial review court must distinguish the threshold question from the ultimate merits of the protection claim. Evidence which makes the claim arguable requires the certificate to be quashed, even if the court considers that the claim may ultimately fail. Under section 94 of the Nationality Immigration and Asylum Act 2002, asylum and human-rights aspects may be treated separately. A certificate may therefore be quashed for the human-rights or humanitarian-protection claim while upheld for an asylum claim that is clearly hopeless.

The claimant, a former South African police sergeant, claimed asylum after threats and a shooting incident involving criminal gangs. The Secretary of State certified the claim as clearly unfounded under section 94(3) of the Nationality Immigration and Asylum Act 2002, principally on the basis that the claimant could relocate within South Africa and would receive sufficient state protection.

After the certificate was maintained, the claimant relied on evidence from a senior South African police officer that no effective protection existed for him and his family, together with evidence concerning corruption in the South African Police Service. The issue was whether the claims were incapable of succeeding before an Immigration Judge and whether the certificate could be quashed in part.

1. Threshold for certification. The court applied the approach described in L v Secretary of State for the Home Department [2003] 1 WLR 1245, as reflected in the line from Yogathas to ZL and VL. The decision-maker must examine the practical substance and detail of the claim against the known background evidence. The claim is clearly unfounded only if it cannot succeed on any legitimate view.
2. Non-state-agent risk. Under Bagdanavicius v Secretary of State for the Home Department [2005] 2 AC 668, violent treatment by non-state agents engages Article 3 where the state fails to provide reasonable protection. The court treated that as the governing issue for the human-rights and humanitarian-protection claims.
3. Application to the evidence. The evidence from Captain Munro had not clearly been rebutted and was supported by general evidence of corruption within the South African Police Service. The court did not decide whether the claimant would ultimately succeed. It held only that the issue of effective protection and internal relocation was arguable and would not inevitably lead to rejection by an Immigration Judge.
4. Separate treatment of claims. Sections 94(1) and 94(1A) permit certification of one claim as clearly unfounded while leaving another uncertified. The court therefore had power to quash the certificate in part. The human-rights and, insofar as relevant, humanitarian-protection certificate was quashed. The asylum certificate was upheld because the claim lacked a Refugee Convention reason and was clearly hopeless.
5. The defendant was ordered to pay the claimant’s costs, subject to detailed assessment, together with a public funding assessment.

First-instance judicial review in the Administrative Court. No earlier decision is stated in the judgment.