Secretary of State for Home Department v MH

Certification under section 94(2) of the Nationality, Immigration and Asylum Act 2002 prevents an in-country appeal where the claimant has made an asylum or human-rights claim certified as clearly unfounded. The bar applies even if the claimant seeks to advance a ground available under section 84, including humanitarian protection.

The certified subject is the claim, not the immigration decision. A claim may contain asylum and human-rights elements. A separate assessment of humanitarian protection does not create a residual in-country right of appeal. Where the Secretary of State maintains the jurisdictional objection, the First-tier Tribunal cannot determine the appeal.

The Secretary of State appealed against First-tier Tribunal Judge Blackford’s decision allowing MH, a Bangladeshi national, to appeal on humanitarian-protection grounds against removal directions.

The Secretary of State had certified MH’s asylum and human-rights claims as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002. The First-tier Tribunal held that humanitarian protection remained available as a separate basis for an in-country appeal. The Secretary of State contended that certification barred the appeal notwithstanding any ground under section 84.

The Upper Tribunal considered whether certification under section 94(2) removed the First-tier Tribunal’s jurisdiction to hear the appeal while MH remained in the United Kingdom.

1. Appeal allowed. The First-tier Tribunal made a material error of law by deciding that it had jurisdiction to determine an in-country appeal on humanitarian-protection grounds. Its decision was set aside and replaced with a decision that it had no such jurisdiction.

2. Section 94(2) applies to an appeal under section 82(1) where the appellant has made an asylum claim or a human-rights claim. Although section 92(4)(a) would ordinarily permit an in-country appeal following either type of claim, certification that the claim or claims are clearly unfounded prevents reliance on that provision.

3. The statutory distinction is between the claim and the grounds that might otherwise be advanced against the resulting immigration decision. Certification under section 94(2) attaches to the claim, which may comprise asylum and human-rights elements. It therefore operates despite reliance on a section 84 ground and despite the Secretary of State having separately considered humanitarian protection under paragraph 339C of the Immigration Rules.

4. The Secretary of State consistently raised the jurisdiction point. The Tribunal considered Anwar v SSHD [2010] EWCA Civ 1275 and the clarification in R (on the application of Nirula) v SSHD [2012] EWCA Civ 1436. The jurisdictional position was therefore properly before the First-tier Tribunal and could not be disregarded.

5. The Secretary of State’s undertaking to reconsider certification in light of the material placed before the First-tier Tribunal remained binding.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside for want of jurisdiction.
• First-tier Tribunal: Judge Blackford allowed the claimant’s appeal on humanitarian-protection grounds, holding that certification did not apply to that ground.