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

For certification under section 94 of the Nationality, Immigration and Asylum Act 2002, a claim is clearly unfounded where, on any legitimate view of the evidence, it cannot succeed before the appellate tribunal. The decision-maker must assess the factual substance and detail, the background evidence, credibility in the round, and whether the claim could fall within the Refugee Convention or article 3.

General sufficiency of state protection does not prevent an applicant proving insufficiency in particular circumstances. Internal relocation must be assessed by asking whether relocation to a safe area with sufficient protection would be unduly harsh. The comparison is between conditions in the home area and the proposed place of relocation. Material evidence arising after the decision cannot ordinarily establish that the original decision was unlawful.

The claimant, a Pakistani national, challenged the defendant’s decision of 9 August 2013 certifying his asylum and human rights claims as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002. Certification meant that any appeal against the refusal of further leave and removal decision could be brought only after removal.

The challenge was limited to whether the defendant had adequately considered sufficiency of protection and internal relocation in light of a specific threat arising from an attack on the claimant’s father and a threatening letter. The claimant also advanced an article 3 claim based on the same factual matrix.

1. Disposition. The claim was dismissed. The certification decision and removal directions were lawful. Any appeal against the refusal of leave and removal decision could be pursued only after the claimant had left the United Kingdom.
2. Clearly unfounded test. Applying ZL & VL v Secretary of State for the Home Department [2003] EWCA Civ 25 and R (Bagdanavicius) v Secretary of State for the Home Department [2003] EWCA Civ 1605, the question was whether the claim was so lacking in substance that an appeal would be bound to fail. The decision-maker had to consider the claim’s factual substance and detail, the background evidence, whether it was capable of belief, and whether it could succeed under the Refugee Convention or article 3.
3. Sufficiency of protection. The practical standard described in Horvath v Secretary of State for the Home Department [2000] UKHL 37; [2001] AC 489 does not require complete protection against isolated or random attacks. Pakistan generally had sufficient state protection, consistently with AW (sufficiency of protection) Pakistan [2011] UKUT 31 (IAC), but the claimant could still establish a particular insufficiency. On the evidence, the police were investigating the attack and threatening letter, the claimant’s family remained in Nowshera, and the alleged political motive and ability of the attackers to find him were speculative.
4. Internal relocation. Under Robinson v Secretary of State for the Home Department [1998] QB 929 and Januzi v Secretary of State for the Home Department [2006] UKHL 5, the issue was whether relocation to a safe area with sufficient protection would be unduly harsh, assessed by comparing the claimant’s home area with the proposed location. Relocation to Karachi or Hyderabad was not shown to be unsafe or unduly harsh.
5. The failure to make express credibility findings was immaterial because the certification challenge failed on sufficiency of protection and relocation. Evidence produced after the decision could not be used to impugn its lawfulness.

First-instance judicial review in the Administrative Court. The judgment does not state any subsequent appellate decision.