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

Certification of an asylum or human rights claim as clearly unfounded requires more than a conclusion that the claim is unlikely to succeed. The claim must be so lacking in substance that an appeal would be bound to fail. If a legitimate view of the facts or law could lead to success, or reasonable doubt remains, certification is unavailable. In non-state-actor cases, sufficiency of protection is assessed by a practical, fact-sensitive standard. It does not require a guarantee of safety, but it must address the claimant’s individual circumstances and targeted risks. Where protection or internal relocation depends on unresolved factual questions, further inquiry may be required before certification.

The appellant, a Pakistani national, claimed asylum after threats connected with the anti-terrorist policing work of her brother-in-law, with whom she lived. She alleged attacks on the family and argued that the Pakistani authorities could not provide sufficient protection, and that relocation within Pakistan would not be safe.

The Secretary of State refused the asylum and human rights claims and certified them as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002. Burnett J refused judicial review on 16 January 2012. The central issue on appeal was whether the Secretary of State could lawfully reach that certification conclusion without further inquiry into state protection and internal relocation.

Appeal allowed. The Court of Appeal held unanimously that the Secretary of State could not certify the claims as clearly unfounded.

1. The applicable threshold was the stringent test identified in R (Bagdanavicius) v SSHD [2003] EWCA Civ 1605 and ZT (Kosovo) v SSHD [2009] 1 WLR 348. A claim is clearly unfounded only where it is so lacking in substance that an appeal would be bound to fail. If there is a legitimate view on which the claim may succeed, or a real prospect that an immigration judge may reach a different conclusion, certification is not available.
2. In a non-state-actor case, the sufficiency of protection must be assessed by a practical standard. It need not eliminate every risk or provide an absolute guarantee, as explained in Horvath v SSHD [2001] 1 AC 489. Nevertheless, the assessment is fact-sensitive and must consider the claimant’s particular circumstances, including targeted threats and whether additional protection is reasonably required.
3. The Secretary of State’s repeated reliance on the appellant’s failure to pursue further avenues of protection was central to the decision. The appellant’s evidence about whether protection had been requested or provided was ambiguous. Whether a senior police officer’s family could obtain effective protection required investigation and an opportunity for oral evidence.
4. The internal-relocation reasoning was also inadequate. Relocation had not been properly explored in interview, and the conclusion that the risk was confined to Karachi did not address how the appellant’s return might become known or whether those threatening the family could find her elsewhere. Her inability to explain the terrorists’ operational capacity did not justify certification.

The court did not determine the merits of the asylum claim. The unresolved issues and the real prospect of a different tribunal conclusion were sufficient to invalidate the certification.

1. Court of Appeal (Civil Division) — In [2012] EWCA Civ 1145, the appeal was allowed.
2. High Court of Justice, Queen’s Bench Division, Administrative Court — Burnett J refused the appellant’s application for judicial review on 16 January 2012.