Parmer v Secretary of State for the Home Department

A claim is not clearly unfounded merely because its individual elements fail when considered separately. In deciding whether to certify a human rights claim, the Secretary of State must consider the interrelationship between the claimant’s medical condition on return and the impact that condition may have on the best interests and Article 8 rights of the claimant’s children.

The objective clearly unfounded test requires the decision-maker to consider the factual substance of the claim, the background evidence, credibility, partial credibility where appropriate, and whether the claim could succeed on any legitimate view. A claim need not be likely to succeed to avoid certification. It is enough that success cannot be ruled out on every legitimate view.

The claimant, a Malawian national living in the United Kingdom with his wife and children, challenged the Secretary of State’s certification of his asylum and human rights claims as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002.

His claims included alleged family persecution and the risk that he would receive inadequate or no HIV treatment in Malawi. The Secretary of State considered the risk of persecution, the claimant’s medical position, and the children’s welfare separately. Permission to apply for judicial review was granted on the arguability of the certification decision. The central issue was whether the human rights claim, particularly the children’s position under section 55 of the Borders, Citizenship and Immigration Act 2009, was clearly unfounded when the matters were considered together.

1. Certification test. The court adopted the objective approach stated in L v Secretary of State for the Home Department [2003] 1 WLR 1230. The decision-maker must examine the factual substance and detail, the background evidence, whether the claim is capable of belief, whether part of it is capable of belief, and whether the believed claim could fall within the relevant Convention or human rights protection. Certification is justified only where the claim cannot succeed on any legitimate view. The same principles apply to a human rights claim.
2. The evidence did not establish that the claimant would inevitably be unable to obtain treatment in Malawi. Nor did the risk to his health, standing alone, establish an Article 3 or Article 8 claim. The Secretary of State was entitled to certify the persecution aspect as clearly unfounded, having considered sufficiency of protection and internal relocation.
3. However, the Secretary of State had considered the issues in compartments. She had considered the claimant’s medical position, the children’s welfare, and the family’s return separately, but had not considered how the claimant’s risk of inappropriate or absent treatment could affect the children if the family returned together. That omission was material to the children’s best interests and their Article 8 rights under section 55 of the 2009 Act.
4. The human rights claim could therefore not properly be certified as clearly unfounded. This conclusion did not determine that the claim would succeed before a tribunal. It established only that success could not be excluded on every legitimate view.
5. Judicial review was granted and the certification decision was quashed, strictly confined to the decision in paragraph 57 of the Secretary of State’s decision letter of 17 May 2012, as maintained by the letter of 30 September 2013. Permission to appeal was refused because the decision principally turned on the facts.

This was a first-instance judicial review. Permission to apply was granted by His Honour Judge McKenna on 10 October 2012. The Administrative Court granted judicial review and quashed the certification decision. Permission to appeal was refused.