FR & Anor (Albania), R (On the Application Of) v Secretary of State for the Home Department

A protection or human rights claim is “clearly unfounded” only if it is bound to fail before a properly directed tribunal and cannot succeed on any legitimate view of the facts or law. Certification requires careful, individual consideration of the claim, its supporting material and the relevant objective evidence.

Refusal of the underlying claim and certification are distinct decisions. Reasons sufficient to refuse protection do not necessarily establish that an appeal would be bound to fail. On judicial review, the court exercises an intensive but supervisory jurisdiction, applying anxious scrutiny and assessing how an appeal would be likely to fare before the tribunal.

Two Albanian citizens appealed against refusals of permission to seek judicial review of decisions certifying their asylum claims as “clearly unfounded” under section 94(3) of the Nationality, Immigration and Asylum Act 2002. Certification restricted them to appeals brought after leaving the United Kingdom.

KL relied on an alleged blood feud arising from his father’s killing of another man. FR relied on an alleged blood feud, domestic violence, her mental illness and the effect of deterioration in her health upon her three children. The Upper Tribunal refused both applications for permission to seek judicial review.

The central issue was whether either claim was bound to fail before a properly directed First-tier Tribunal, so that certification was lawful.

1. Both appeals allowed. Permission to apply for judicial review was granted. At the parties’ invitation, the court determined the substantive applications and set aside the certification decisions: per Beatson LJ, with whom Lindblom and Davis LJJ agreed.

2. A claim is “clearly unfounded” only where it cannot succeed on any legitimate view and would be bound to fail before a First-tier Tribunal properly directing itself on the law and evidence. The Secretary of State must examine the factual substance and detail of the claim, the supporting material and the relevant objective evidence. The claim must be assessed in the round. The listed status of the claimant’s country provides a starting point but does not replace individual examination.

3. Judicial review of certification remains supervisory. Its intensity lies at the most intensive end of the spectrum because removal may expose the claimant to grave harm. The court applies anxious scrutiny and considers how the claim would be likely to fare before the tribunal. Where reasonable doubt exists about whether the claim may succeed, certification is irrational.

4. Refusal of asylum and certification are separate decisions. Reasons showing that evidence is inconsistent or that the Secretary of State considers a claim unpersuasive may justify refusal without showing that every properly directed tribunal must reject it. A decision letter must be read practically, as a whole and against the evidence. Its substantive analysis must demonstrate that the distinct certification test was applied.

5. KL’s account lacked detail, but the documentary evidence, alleged violence, political connections and country guidance meant that a tribunal could legitimately find an active feud and nationwide reach. Country guidance also stated that protection might be insufficient in northern areas where Kanun law predominated. His claim therefore admitted of more than one legitimate answer.

6. FR’s alleged blood-feud claim was itself clearly unfounded. Her wider claim was not. The evidence concerning prolonged domestic violence, severe mental illness, likely deterioration on return and diminished capacity to parent her children created reasonable doubt about whether internal relocation would be unduly harsh. The failure to address expressly the report’s implications for the children reinforced that conclusion.

7. Davis LJ emphasised that certification is a statutory summary decision made by the executive. Judicial review does not transfer that decision to the court. Nevertheless, hesitation about whether a claim is bound to fail must resolve in the claimant’s favour.

1. Court of Appeal (Civil Division): The appeals were allowed. Permission to apply for judicial review was granted and the certification decisions were set aside: [2016] EWCA Civ 605.

2. Upper Tribunal (Immigration and Asylum Chamber): Permission to apply for judicial review was refused in both cases. KL’s renewed application was refused by Upper Tribunal Judge Gill. FR’s application was refused and certified as totally without merit by Sir Stephen Silber. No neutral citations for those decisions are stated.