Syed, R (on the application of) v Sabahata & Ors

A claim is “clearly unfounded” where it cannot on any legitimate view succeed. The assessment is objective and focuses primarily on the quality of the claim, considered against the available evidence and the United Kingdom’s Convention obligations.

In assessing internal relocation, the decision-maker must consider whether relocation is reasonable or would be unduly harsh. State protection does not require absolute immunity, but requires a functioning system of criminal law and a reasonable willingness by law-enforcement agencies to detect, prosecute and punish offenders.

Children’s best interests must be a primary consideration under section 55 of the Borders, Citizen and Immigration Act 2009, although they may be outweighed by countervailing factors.

The claimant, an Indian national, sought judicial review of the Secretary of State’s decision certifying his asylum and human rights claims as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. His wife and two children were interested parties.

He feared persecution in India from his wife’s family and the Shia community because he was a Sunni married to a Shia. He also alleged inadequate state protection and challenged the consideration given to his children’s welfare under section 55 of the Borders, Citizen and Immigration Act 2009.

The central issues were whether the certification was legally sustainable, whether safe and reasonable internal relocation was available, whether India provided sufficient protection, and whether the children’s best interests had been properly considered.

1. Certification. The challenge to the asylum and human rights certifications was dismissed. The test under section 94 was objective. Applying VL and VL v Secretary of State for Home Department [2003] 1 WLR 1230, the question was whether the claims could succeed on any legitimate view. The Secretary of State was entitled to conclude that the claimant’s account did not establish a well-founded fear. The threats were principally made by telephone, the claimant repeatedly returned to areas where he claimed to fear persecution, and the evidence did not establish a general risk to Sunni-Shia couples.
2. Internal relocation. Relocation within India was reasonably available and would not be unduly harsh. The claimant had previously lived in several Indian cities without being located or physically attacked. His difficulties in maintaining secrecy resulted from information disclosed by his wife or obtained through personal contacts. The approach in Januzi v Secretary of State [2006] 2 AC 426 was applied.
3. State protection. Although this issue was academic because no well-founded fear had been established, the court held that protection need not provide absolute immunity. Under Horvath v Secretary of State [2000] UKHL 37, [2001] 1 AC 489, the relevant question was whether criminal laws operated against violent attacks and whether the police and courts showed reasonable willingness to detect, prosecute and punish offenders. The claimant had not tested police protection outside Hyderabad.
4. Children’s welfare. The Secretary of State had complied with section 55 of the Borders, Citizen and Immigration Act 2009. The children were very young, had no deep friendships outside the immediate family, would remain with both parents, and could continue their education in India in their own language and culture. Their best interests were a primary consideration, but did not determine the outcome.
5. The application was refused. The dependent children’s challenges failed with the claimant’s challenge.

First-instance judicial review in the Administrative Court. No prior appellate decision is stated in the judgment.