FNB & Anor, R ( on the application of) v The Secretary of State for The Home Department

Procedural fairness in an asylum decision is context-sensitive. The decision-maker must give a fair opportunity to address the gist of the concerns, but need not ask every conceivable question. The absence of legal representation does not itself make an interview unfair. A certification that a claim is clearly unfounded is an objective, binary decision: the claim must be bound to fail, with no reasonable doubt, on the evidence actually put forward. Where country evidence shows safe internal relocation and personal evidence cannot displace it, certification may be required. Detaining spouses in separate accommodation unlawfully interferes with Article 8 where the Secretary of State has no family accommodation and has made no genuine lawful decision about the separation.

This was a first-instance claim for judicial review and damages concerning the refusal of asylum, humanitarian protection and human-rights claims, their certification as clearly unfounded, and the claimants’ detention pending removal. The claimants were married Indian nationals in an interfaith relationship. Their asylum claim was refused and certified in August 2025, and they were detained separately in male and female accommodation.

The claimants advanced four grounds: procedural unfairness; irrational certification; unlawful interference with family life under Article 8 of the European Convention on Human Rights; and damages. The Secretary of State later conceded that the separation was unlawful. A reconsideration decision, issued after the hearing but before judgment, refused the claims again without certification. The central issues were whether the original decision was procedurally unfair or irrational, and the consequences of the unlawful separation.

The claim for judicial review failed on Grounds 1 and 2. Ground 3 succeeded. The related damages claim therefore succeeded in part and was transferred to the county court for assessment of quantum; the damages claim based on unlawful detention under Grounds 1 and 2 failed.

1. Procedural fairness. The governing inquiry was context-sensitive. The court applied the principles in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, Pyaneandee v Lang Shang Lam [2024] UKPC 27, R (Howard League for Penal Reform) v Lord Chancellor [2017] 4 WLR 92 and R v SSHD ex p Sittamplan Thirukumar [1989] Imm AR 402. The interview, viewed as a whole, gave adequate opportunity to explain the feared persecution, relevant incidents, state protection and relocation. The relocation questioning was more finely balanced, but still sufficient.
2. The absence of legal representation did not itself make the process unfair. It could affect the questions asked and the explanations required, but the claimant was an educated adult who communicated in English and had personal knowledge of the relevant facts. Later obtaining legal aid and providing further evidence did not retrospectively invalidate the original process. The availability of further submissions under the Immigration Rules and judicial review did not relieve the Secretary of State of the initial duty to make proper enquiries. The later reconsideration nevertheless showed that no new material evidence had been omitted from the original interview, so any procedural shortcoming was immaterial, consistently with R (Singaram) v Secretary of State for the Home Department [2025] EWCA Civ. 1375.
3. Clearly unfounded certification. The test was objective and binary. Applying ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348 and FB & anr (Albania) v SSHD [2016] EWCA Civ 605, the court assessed whether the claim was bound to fail on any legitimate view of the facts and law, having regard to the claim actually advanced and the evidence taken at its highest. Under section 94, India was a listed country. The country evidence showed safe areas, and the claimants’ personal evidence did not establish that every reasonably available part of India was unsafe or that relocation would be unduly harsh. Certification of the claim as a whole was therefore required. The evidence of inadequate police responses did not, even taken at its highest, establish an inability to obtain state protection. Ground 2 failed.
4. Article 8 and candour. The Secretary of State conceded that the separation of the spouses was unlawful because no adult family accommodation existed and no genuine decision had been made either to provide it or to depart from the applicable policy. The court made the declaration of unlawfulness but declined to determine wider proportionality and damages issues, which were appropriate for the county court. It also found a serious breach of the duty of candour because the Secretary of State had implied that family accommodation existed and had been genuinely considered when it had not.