R (on the application of H) v The Secretary Of State For The Home Department

Certification of a protection or human rights claim as clearly unfounded requires careful attention to applicable Upper Tribunal country guidance. Where a First-tier Tribunal would be bound by that guidance, the Secretary of State must consider whether cogent evidence justifies departure from it. The certification decision must allow for the realistic prospect that the tribunal could reach a different conclusion.

The reviewing court’s role remains supervisory, although review is particularly intensive. A prior unlawful certification decision may affect the legality of later detention where it bears on and is relevant to that detention decision. Detention must remain justified by a realistic prospect of removal and must comply with the Hardial Singh principles.

The claimant, an Albanian national, sought asylum on the basis of an alleged blood feud and also feared money lenders. The Secretary of State refused his protection and human rights claims and certified them as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002, removing his statutory right of appeal.

He also challenged his detention between 11 January and 7 June 2023. Permission had been refused on the papers. On renewal, the issues were whether the certification decision had properly addressed the country guidance in EH (blood feuds) Albania CG, whether internal relocation had been assessed consistently with relevant guidance, and whether the certification decision affected the lawfulness of detention.

1. Certification. The claim was not finally determined, but grounds 1 and 4 were arguable. Where primary facts are undisputed, the clearly unfounded test involves asking whether the claim has a realistic prospect of success before an immigration judge. Review is nevertheless supervisory, albeit at the most intensive end of the spectrum: ZT (Kosovo), as endorsed in later authority.
2. Upper Tribunal country guidance is authoritative in later appeals unless superseded, inconsistent with binding authority, or displaced by cogent evidence. The party seeking departure must show that material circumstances have changed and that the changes are evidentially well established and durable. The age of the guidance does not alter that legal process. The Home Office cannot itself determine whether the guidance is to be followed.
3. The decision letter considered developments in Albanian state protection but failed to address the qualification in the third headnote of EH (blood feuds) Albania CG, concerning areas where Kanun law predominates. It also failed to address adequately the implications of the country guidance for the First-tier Tribunal’s assessment of internal relocation. It was therefore arguable that a tribunal applying EH could reach a different conclusion.
4. The same defect arguably affected the assessment of whether the claimant could relocate to avoid the alleged persecutors. Relevant country guidance concerning internal relocation and the ability to trace individuals had not been treated as the starting point, nor had cogent justification for departure been identified.
5. Detention. The challenge based on the alleged unlawfulness of certification was arguable. Certification bore on and was relevant to detention because, absent certification, the claimant would probably have pursued an appeal and detention would have required reconsideration in that context.
6. The detention challenge before 13 April 2023 was not arguable. There remained a realistic prospect of removal and detention was proportionate, having regard to the claimant’s circumstances and medium absconding risk. Detention after 27 April 2023 was arguably contrary to the Hardial Singh principles because judicial review made imminent removal unlikely and the claimant’s incentive to comply with bail conditions had increased. The parties were directed to draw up orders reflecting those conclusions and case-management directions.

not stated in the judgment.