SP (Albania) v Secretary of State for the Home Department

For certification as clearly unfounded, an asylum claim must be assessed at its highest by considering the case actually advanced, including the claimant’s answers, supporting material and objectively capable evidence. This does not require every assertion to be accepted as true. Where material evidence could be objectively well founded and sufficient to establish a claim, but is not accepted by the Secretary of State, the evidence should be tested at a hearing before the First-tier Tribunal and certification is inappropriate. The assessment must also address, on the case properly identified, sufficiency of protection and internal relocation. A failure to investigate material answers or ask obvious questions may invalidate those assessments.

The appellant, an Albanian national, challenged the Secretary of State’s refusal of her asylum claim and certification under section 94(2) of the Nationality, Immigration and Asylum Act 2002. The Upper Tribunal dismissed her judicial review claim. It held that, on her case, she had not been trafficked, that Albania would provide sufficient protection and that internal relocation was reasonably available.

On appeal, the appellant argued that the Upper Tribunal and the Secretary of State had failed to consider her case at its highest. Later, the Competent Authority accepted that there were conclusive grounds to believe that she was a victim of trafficking, although it found no basis for discretionary leave. The central issue was whether the certification decision could stand despite material answers about threats to her children, the perpetrator’s connections and the protection and relocation questions not having been properly investigated.

1. Appeal allowed. The Upper Tribunal’s decision was set aside. The Secretary of State’s decision refusing the asylum claim and certifying it as clearly unfounded was quashed.
2. The trafficking definition in article 4(a) of the Council of Europe Convention on Action against Trafficking in Human Beings is disjunctive as to the listed acts. Recruitment, transportation, transfer, harbouring or receipt is independently sufficient where the means and exploitation elements are also present. The appellant’s alleged forced sexual exploitation and abuse of power were capable of satisfying the definition.
3. Taking a claim at its highest does not mean accepting every assertion as correct. Following R (on the application of FR (Albania)) v Secretary of State for the Home Department [2016] EWCA Civ 605, the decision-maker must assess the claim actually advanced, including interview answers, witness statements, detail and supporting evidence. If material evidence is capable of being objectively well founded and sufficient to establish a claim, but is not accepted, the claim should not be certified because the evidence requires testing before the First-tier Tribunal.
4. The Secretary of State and the Upper Tribunal failed to investigate material answers given at the screening interview. Those answers raised questions about why the appellant feared that her children would be taken away, who would take them, and whether AK had connections with authorities or others. The failure meant that the claim was not assessed at its highest.
5. The assessments of sufficiency of protection and internal relocation were also affected because they depended in part on the case the appellant was putting forward. The principles in Horvath v Secretary of State for the Home Department [2001] AC 489, Januzi and others v Secretary of State for the Home Department [2006] UKHL 5, and AM and BM [2010] UKUT 80 (IAC) were not themselves criticised, but could not save a decision based on a materially incomplete understanding of the claim.

• Court of Appeal (Civil Division): appeal allowed; the Upper Tribunal’s decision was set aside and the Secretary of State’s decision of 1 April 2015 was quashed.
• Upper Tribunal (Immigration and Asylum Chamber): Judge McGeachy dismissed the appellant’s judicial review claim on 20 February 2017.
• Secretary of State: asylum claim refused and certified as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002 on 1 April 2015.