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

A human rights claim may be certified as clearly unfounded only where no reasonable decision-maker could accept it. The assessment is objective and must account for the evidence available to the Secretary of State. Credibility concerns, even substantial ones, do not alone justify certification where an Immigration Judge could still believe the account after hearing the claimant and witnesses. Where an Article 3 risk arises from non-state agents, the question includes whether the receiving state provides reasonable protection. Evidence that protective procedures for trafficking victims have not been implemented may make that issue arguable. A certificate should therefore be quashed where either the credibility issue or the adequacy of state protection remains properly arguable.

The claimant sought judicial review of a certificate issued under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The Secretary of State certified that her human rights claim was clearly unfounded and proposed her removal to Cyprus under the Dublin Regulation. The claimant alleged that she had been trafficked and sexually exploited in Cyprus and would face a real risk of ill-treatment there, with inadequate protection from the Cypriot authorities.

Permission was initially refused by Burton J, but was later granted after further evidence from the POPPY Project and country material concerning trafficking protection in Cyprus. The central issue was whether it could properly be said that no Immigration Judge would believe the claimant or find that Cyprus could not provide the necessary protection.

1. The certificate was quashed. The court was concerned only with the certificate that the human rights claim was clearly unfounded. The unchallenged third-country certificate was not quashed.
2. The clearly unfounded test is objective. The court must consider whether, on the material before the Secretary of State, no Immigration Judge could reach the relevant conclusion. The examination must be rigorous, but credibility is ordinarily a matter for the Immigration Judge after detailed assessment of the claimant and witnesses.
3. The claimant faced serious credibility difficulties because of lies and inconsistencies about her age, travel, fingerprints and asylum claims. Nevertheless, it remained possible that an Immigration Judge would accept that she concealed her account of events in Cyprus because she feared it would not be believed. The threshold for certification was therefore not met.
4. Under the principles identified in R (Bagdanavicius) v Secretary of State for the Home Department and Horvath v Secretary of State for the Home Department, Article 3 may be engaged by harm from non-state agents where the receiving state has failed to provide reasonable protection. The evidence that Cyprus had not implemented protective procedures for persons claiming to have been trafficked made that issue at least arguable.
5. The defendant was ordered to pay the claimant’s costs from 28 February 2008, subject to assessment and a set-off of £400 ordered on 26 September 2007. Leave to appeal was refused, with any renewed application to be made to the Court of Appeal.

The judgment itself states that permission for judicial review was initially refused by Burton J on 26 September 2007. On 16 April 2008, Sir George Newman, sitting as a Deputy High Court Judge, granted permission to pursue the claim. The Administrative Court then quashed the clearly unfounded certificate.