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

A claim may be certified as clearly unfounded only where it cannot, on any legitimate view, succeed. The assessment is objective and requires the decision-maker to consider the substance of the claim, the country evidence, credibility, and whether the claim could fall within the Refugee Convention.

In a non-state-agent case, sufficiency of protection does not require guaranteed immunity. The question is whether the state provides a reasonable willingness and ability to detect, prosecute and punish the feared violence. Internal relocation is permissible where it would not be unduly harsh, assessed against all relevant circumstances. Some difficulty or discrimination does not itself make relocation unreasonable.

The claimant, a Nigerian national, challenged the Secretary of State’s certification of her asylum claim as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002. She feared violence from her husband’s family and argued that Nigeria could not provide sufficient protection and that internal relocation was not reasonably available.

The principal questions were whether there was sufficient state or other protection in Nigeria and whether it would be unduly harsh for the claimant to relocate within Nigeria. The claim also raised, but did not materially depend upon, the existence of a Convention reason.

1. Certification test. The court applied the objective test in ZL and VL v Secretary of State for the Home Department and Another [2003] EWCA Civ 18. A claim is clearly unfounded only if it cannot on any legitimate view succeed. The threshold is high, and an arguable claim must not be certified.
2. Sufficiency of protection. The test in Horvath v Secretary of State for the Home Department [2001] 1 AC 489 does not require absolute protection. There must be criminal laws of appropriate severity and a reasonable willingness by the police and courts to detect, prosecute and punish offenders. The claimant had not reported the assault, and the evidence did not establish that the police would fail to investigate violence by members of a wider family. Gender-specific NGOs also provided potential assistance.
3. Internal relocation. Applying Januzi v Secretary of State for the Home Department [2006] 2 AC 426, the question was whether relocation would be unduly harsh. Nigeria’s size, the claimant’s family unit, her age and fitness, and the absence of objective evidence that the husband’s family could locate her elsewhere meant that relocation was a realistic option. Initial difficulty or discrimination did not establish undue harshness.
4. The reasoning in R (on the application of Obasi) v Secretary of State for the Home Department [2007]EWHC] Admin 381 supported the conclusion on Nigerian protection and relocation, although the case remained fact-specific. The certification was lawful, the claim was dismissed, and permission to appeal was refused. There was no order as to costs apart from legal aid taxation.

First-instance judicial review. The court dismissed the claim and refused permission to appeal.