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

A claim may be certified as clearly unfounded only where the Secretary of State is reasonably and conscientiously satisfied that it must clearly fail. A country’s designation under Nationality, Immigration and Asylum Act 2002, section 94, changes the starting point for certification but does not bind the appellate tribunal. The tribunal must determine the claim independently on the evidence, including evidence about individual risk, state protection and internal relocation. A claim should not be certified where the evidence shows an arguable risk requiring assessment after testing. The court quashed the certificates and dismissed the challenge to Bolivia’s designation as academic.

The claimants, Bolivian nationals, challenged refusals of asylum and humanitarian protection, certificates under section 94 of the Nationality, Immigration and Asylum Act 2002, and Bolivia’s inclusion in the statutory list of designated countries. Their case concerned alleged persecution and inadequate state protection arising from threats by the first claimant’s former husband, together with the practicability of internal relocation. The claim had been transferred from the Upper Tribunal because it challenged the designation order. After permission was granted, the Secretary of State offered to withdraw certification and grant an in-country appeal, but later withdrew that offer. The central issues were whether certification was lawful, what effect designation had before the tribunal, and whether the designation challenge remained justiciable.

1. Certification. Under section 94 of the Nationality, Immigration and Asylum Act 2002, the applicable test was whether the Secretary of State was reasonably and conscientiously satisfied that the claim must clearly fail, as stated in [2003] 1 AC 920. The assessment could properly take the claimants’ account at its highest where their credibility had not been determined by a court or tribunal.
2. The evidence raised substantial issues concerning the alleged persecutor’s capacity to locate and harm the first claimant, the effectiveness of Bolivian police protection, and internal relocation. The claims might ultimately fail, but they were not bound to fail. Certification was therefore unlawful. The certificates were quashed and the claimants were declared entitled to an in-country appeal.
3. Effect of designation. The Court of Appeal’s decision in MD (Gambia) v SSHD [2011] EWCA Civ 121 showed that designation did not make general evidence of human-rights abuses immaterial. The First-tier Tribunal was required to reach its own decision on the evidence. Designation altered the starting point for the Secretary of State’s officials when considering certification, but did not bind the tribunal or prevent the claimants adducing evidence about individual risk or state protection.
4. Other matters. The Treasury Solicitor was legally entitled to withdraw the pragmatic offer of an in-country appeal, although it would have been preferable to give a time limit for acceptance. The designation challenge had become academic after certification was quashed and the Secretary of State indicated that permission to appeal that decision would not be sought. It was dismissed on that basis. There was no order as to costs after 1 October 2012, with the usual detailed assessment order for the claimants’ publicly funded costs.

• Upper Tribunal: The claim was issued there but transferred to the Administrative Court because it challenged certification and the statutory designation order.
• High Court (Administrative Court): Ouseley J granted permission on the papers. Bean J later quashed the certificates, declared an in-country right of appeal, refused permission for the supplementary challenge concerning withdrawal of the offer, and dismissed the designation challenge as academic.