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

A claim is clearly unfounded where, after conscientious assessment of the evidence, facts and law, it cannot succeed on any legitimate view. A general risk of terrorist violence does not itself establish a protection claim. In a non-state-agent case, the claimant must show that the state is unwilling or unable to provide reasonable protection; protection need not amount to guaranteed immunity. Internal relocation is available where it would be reasonable to expect the claimant to move and the move would not be unduly harsh. Reasons are adequate where they engage with the main issues and enable the claimant to understand the decision. Adult sibling relationships ordinarily require unusual additional circumstances before they can prevent removal under article 8.

The claimant, a Pakistani national, challenged the Secretary of State’s certification of her asylum and human rights claims under section 94(2) of the Nationality, Immigration and Asylum Act 2002. She feared Taliban-related harm because of her relationship with her brother-in-law, a senior Karachi police officer involved in terrorism prosecutions, and relied on threats against the family, the general security situation, and her close relationship with her sister.

The Secretary of State considered that protection was available from the Pakistani authorities and that the claimant could relocate to Peshawar. The claimant also argued that the decision gave inadequate reasons and that removal would breach article 8. The central issue was whether the claims were clearly unfounded and therefore properly certified.

The claim for judicial review was dismissed.

1. Clearly unfounded test. The court adopted the approach in ZL v Secretary of State for the Home Department [2003] 1 WLR 1230, as explained in R (Bagdanavicius) v Secretary of State for the Home Department [2004] 1 WLR 1207, Thangarasa v Secretary of State for the Home Department [2003] 1 AC 920 and ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348. Certification is lawful where the claim must fail and cannot succeed on any legitimate view of the facts or law.
2. Protection. Applying the principles in R (Umar) v Secretary of State for the Home Department [2008] EWHC 2385 (Admin) and Horvath v Secretary of State for the Home Department [2001] 1 AC 489, the state need not provide absolute safety. It must provide a reasonable system of criminal law and enforcement, with a reasonable willingness to detect, prosecute and punish offenders. The evidence established no proper basis for concluding that Pakistan was unwilling or unable to protect the claimant.
3. Internal relocation. Applying Januzi v Secretary of State for the Home Department [2006] 2 AC 426, relocation depends on all relevant circumstances and is unreasonable only where it would be unduly harsh. The claimant had not shown that the Taliban would seek her out in Peshawar, and the Secretary of State was entitled to rely on relocation as an alternative basis for certification.
4. Article 8 and reasons. Although every article 8 claim must be assessed on its facts, the circumstances of a 30-year-old adult sibling, without more, could not justify the unusual conclusion that removal was prevented by article 8. The Secretary of State’s reasons engaged with the evidence and arguments. A further repetition of the analysis in the certification paragraphs would have been sterile.