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

Certification as clearly unfounded is lawful where the Secretary of State concludes that the human-rights claim would be bound to fail before a tribunal. In assessing return to Italy, the court must consider whether the evidential presumption that Italy will comply with its obligations under EU law and article 3 of the ECHR has been rebutted. General evidence of difficult conditions, increased migration, or pressure on reception facilities is insufficient without a material change demonstrating a real basis on which the presumption could be displaced. A first-instance decision is not binding, but may be followed where its comprehensive assessment discloses no error of law.

The claimant, an Iranian national, challenged the Secretary of State’s certification of his human-rights claim as clearly unfounded before removal to Italy. The earlier challenges to removal and detention were abandoned. The certification decision was reconsidered following R (EM (Eritrea)) v Secretary of State for the Home Department, and the claimant relied on R (MS) v Secretary of State for the Home Department, later evidence concerning conditions in Italy, Belgian decisions, and a UNHCR statement.

The central issue was whether a tribunal could conclude that the evidential presumption of Italy’s compliance with EU law and article 3 obligations had been rebutted.

1. Application refused. The Secretary of State was entitled to certify the claimant’s claim as clearly unfounded.
2. The certification threshold is low in the relevant sense: certification is permissible only where the Secretary of State concludes that the claim that return would result in article 3 ill-treatment would be bound to fail before the tribunal.
3. The court accepted the significance of Tarakhel and applied the evidential question identified in R (MS) v Secretary of State for the Home Department: whether the presumption that Italy would comply with its EU-law and article 3 obligations had been rebutted. Although MS was not binding, its comprehensive review disclosed no error of law and was followed.
4. The additional evidence did not materially alter that assessment. The Aida report was either already before Lewis J or did not demonstrate a materially worse picture. The Belgian decisions carried little weight because their factual and procedural context was unclear and they relied on the same report. The UNHCR statement did not recommend suspension of removals to Italy.
5. Wider political concerns about migration and pressure on the EU asylum system did not alter the continuing legal obligations of Italy or the operation of the Dublin Regulation. The material did not show a material change in circumstances or make it arguable that the evidential presumption was rebutted.

The judgment itself records prior related authorities but does not state an appeal from this decision.