Auleear v Secretary of State for the Home Department

Certification of an asylum or human-rights claim as clearly unfounded is lawful only where the claim must fail on every legitimate view of the facts and law. A listed safe country provides only a starting point and does not remove the need for anxious scrutiny. Where non-state ill-treatment is feared, the question is whether the state is both willing and able to provide sufficient protection to a person in the applicant’s particular circumstances. A claim cannot be certified where a tribunal might legitimately find an insufficiency of protection or an arguable Convention reason for the feared persecution.

The claimant, a Mauritian national, challenged the Secretary of State’s refusal of further submissions and certification of her asylum and human-rights claims as clearly unfounded. She feared violence from her mother and step-father because she had left a forced marriage, and feared being forced into a further marriage. The Secretary of State relied on sufficiency of state protection, internal relocation and, for the asylum claim, the absence of an arguable particular social group.

The internal-relocation ground was not defended at the hearing. The remaining issues were whether the claims were clearly unfounded because Mauritius could provide sufficient protection and whether the asylum claim was bound to fail on the particular-social-group ground.

1. The claim succeeded. The certificates relating to the asylum and human-rights claims were quashed.
2. Under Nationality, Immigration and Asylum Act 2002, section 94, certification is permissible only if the claim must fail on any legitimate view. The court’s review is a rationality review, conducted with anxious scrutiny and at the more intense end of the spectrum. Designation of a country under section 94(4) affects the starting point, but does not determine the result.
3. For feared ill-treatment by non-state agents, sufficiency of protection requires consideration of whether the state is both willing and able to protect the applicant. The issue is not whether some individuals may fail to receive protection, but whether there is a systemic failure affecting a relevant category of persons. Protection must be assessed in the applicant’s particular circumstances.
4. The evidence concerning domestic violence, under-reporting, police ineffectiveness, corruption and failures to enforce protection orders meant that a tribunal might legitimately conclude that Mauritius was unwilling or unable to protect the claimant from her relatives or from a future husband if she were forced into another marriage. The claim therefore could not be certified as clearly unfounded.
5. The particular-social-group issue was fact specific. If there were insufficient protection, it was arguable that the insufficiency resulted from the claimant’s gender. Although success on appeal might be difficult, the Secretary of State was not entitled to conclude that the asylum claim was bound to fail.

The claim was initially part of proceedings concerning detention of asylum seekers. That aspect was dismissed by Cranston J on 7 June 2016 in R (MNK, Hossain and others) v SSHD [2016] EWHC 1331 (Admin). The present judgment determined the claimant’s remaining challenge to certification.