D, 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 it is clear that an appeal would have no real prospect of success. The Secretary of State must engage with material evidence and applicable country guidance. Where protection and internal relocation depend on individual circumstances, general country evidence is insufficient without an individual assessment. If certification is unlawful, the certificate should be quashed so that the claimant can access a fresh appeal. This does not determine the eventual merits of the claim.

The claimant challenged the Secretary of State’s decision of 10 May 2010 certifying as clearly unfounded his claim that deportation to Jamaica would breach Articles 3 and 8 of the European Convention on Human Rights. The certification prevented an appeal to the First-tier Tribunal. He relied on later evidence, including an accepted decision in HC (Jamaica) indicating that the Gem Street gang remained active and had carried out a retaliatory attack connected with the same incident.

The Secretary of State relied on protection by the Jamaican authorities and internal relocation. The central issue was whether, in light of the country guidance in AB (Protection Criminal Gangs Internal Relocation Jamaica) CG, the claim was clearly unfounded.

1. The application succeeded. The certificate was quashed. The Secretary of State was required to take reasonable steps to bring the claimant back to the United Kingdom, with the precise form of order to be settled. Costs were awarded to the claimant.
2. The governing question was whether it was clear that the claim had no real prospect of success before a tribunal. The Secretary of State therefore had to address material evidence bearing on risk, protection and relocation.
3. The country guidance in AB (Protection Criminal Gangs Internal Relocation Jamaica) CG stated that a person targeted by a criminal gang would not normally receive effective protection in the home area unless reasonably likely to be admitted to the witness protection programme. Admission could not properly be assumed.
4. The same guidance treated internal relocation as dependent on the individual facts. General reliance on less affected parts of Jamaica, freedom of movement and population size did not determine whether relocation was viable for this claimant.
5. The evidence accepted in HC (Jamaica) was material supporting evidence that the gang remained active and that retaliation could continue after many years. It did not determine the claimant’s case, but reinforced the need for an individual assessment.
6. The court did not decide that the claimant would ultimately succeed or was entitled to remain in the United Kingdom. It decided only that he was entitled to a fresh appeal. The Article 8 issue did not require determination. The tests for certification and recognising a fresh claim were indistinguishable.