XB v The Secretary of State for the Home Department

Certification of a fresh protection claim under section 94 is lawful only where the claim must clearly fail. The Secretary of State must consider the totality of the material, including evidence capable of showing a risk on return and evidence that the claimant was trafficked. A tribunal hearing an appeal has jurisdiction to decide whether a person was trafficked. A decision of the competent authority is relevant but not conclusive. Where the claim is reasonably arguable, and an appeal would not be bound to fail, certification is unlawful.

The claimant, a national of an anonymised country, had been convicted in the United Kingdom of offences connected with prostitution and sentenced to 30 months’ imprisonment. A deportation order was made, and her appeals were dismissed. Her later application to revoke the order relied on fresh evidence concerning trafficking, risks from persons involved in her exploitation, and the possible knowledge and conduct of the authorities in her country of origin. The Secretary of State refused the application and certified it under section 94(2) of the Nationality Immigration and Asylum Act 2002. The claimant challenged the certification after removal, contending that the decision failed to consider material evidence and wrongly treated the First-tier Tribunal as lacking jurisdiction to determine trafficking. The central issue was whether the claim was so clearly unfounded that an in-country appeal could properly be denied.

1. Certification threshold. Certification under section 94 was permissible only if the claim must clearly fail. It was impermissible merely because the Secretary of State disbelieved the claimant’s account, unless the account was so clearly impossible that no appellate body could accept it or a material part of it.
2. Trafficking. The First-tier Tribunal had jurisdiction to decide whether the claimant had been trafficked. The competent authority’s decision was material but not conclusive. If the Tribunal was satisfied that the competent authority’s decision was wrong, it was entitled, and should, decide the issue itself. The obligations under the trafficking framework applied whether or not the person remained a victim at the time of decision.
3. Failure to consider material evidence. The Secretary of State had failed to assess the totality of the information. Internal material included a positive assertion that the claimant’s convictions had been notified to the authorities in her country of origin, and there should have been proper investigation of whether the relevant prison notification obligations had been complied with. Failure to disclose or investigate that material breached the duty to act fairly.
4. Arguable protection claim. There was powerful evidence of possible detention and ill-treatment, including risks arising from the claimant’s return without a passport and possible double jeopardy. It was not for the Administrative Court to pre-judge the First-tier Tribunal’s determination. The appeal was not bound to fail, and section 33(6A) of the UK Borders Act 2007 remained potentially relevant.
5. The claim was allowed. The Secretary of State was directed to enable the claimant to enter the United Kingdom to attend her appeal.

The judgment records that the claimant’s appeal against the deportation order and refusal of protection was dismissed by the First-tier Tribunal on 5 March 2013. Her appeal to the Upper Tribunal was dismissed on 22 July 2013. The present claim for judicial review challenged the later refusal and certification decision. The High Court allowed the claim and directed the Secretary of State to enable the claimant to enter the United Kingdom to attend her outstanding appeal.