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

A certification under Nationality, Immigration and Asylum Act 2002, section 94, is unlawful if the decision-maker applies the wrong legal test or reaches an irrational conclusion. In an Article 3 claim based on threats from non-state actors, sufficiency of protection is assessed by the availability of a legal system and the authorities’ reasonable willingness and ability to provide a reasonable level of protection. Perfect policing is not required. A claim is clearly unfounded only where, on a conscientious assessment of the evidence, it cannot legitimately succeed. The court will not intervene merely because the claimant has a genuine fear or because the receiving state faces violence, corruption or inefficiency.

The claimant, a Pakistani national, sought judicial review of the Secretary of State’s refusal of his asylum and humanitarian protection claims and certification of those claims as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002. The certification removed his in-country right of appeal.

Permission was granted on two grounds: alleged failure to give adequate reasons for the certification and alleged irrationality in the assessment of whether the claimant could relocate to Karachi. By the hearing, the defendant relied principally on the sufficiency of state protection. The central issue was whether the decision to certify the claim as clearly unfounded was irrational or based on an erroneous legal test.

1. Application refused. The court held that the claimant’s fear had not been challenged as lacking credibility, but that this did not establish unlawfulness in the Secretary of State’s decision.
2. The claimant’s case was in substance an Article 3 claim rather than an asylum claim under Article 1A(2) of the Refugee Convention. Similar principles concerning the sufficiency of state protection applied. Following Horvath [2000] UKHL 37, protection was to be assessed by reference to the existence of a system capable of providing protection and the authorities’ reasonable willingness and ability to operate it. The standard did not require perfect efficiency or the elimination of all risk.
3. The court accepted the approach to certification reflected in Thangarasa v Secretary of State [2002] UKHL 36: the applicant bore the burden of showing substantial grounds for believing that removal would expose him to Article 3 treatment, and certification was permissible where the decision-maker was reasonably and conscientiously satisfied that the allegation must fail.
4. The Secretary of State had considered the country material concerning Pakistan, including evidence of an operating police force despite corruption and inefficiency. On the material before her, she was entitled to conclude that the Pakistani authorities could provide protection meeting the applicable standard. The judge could not find that conclusion irrational or that the wrong legal test had been applied.
5. Internal relocation was not relied on before the court as a separate ground of defence. The claim therefore failed on the sufficiency-of-protection analysis, and the application was refused. No order for costs was sought.