The King (on the application of H) v The Secretary of State for the Home Department

Hearing date: 13 September 2023

Approved Judgment

Background

The Claimant is a citizen of Albania who made an application for asylum. The Secretary of State rejected the claim for asylum and his human rights claims and certified his application as ‘clearly unfounded’ under section 94(3) of the Nationality, Immigration and Asylum Act 2022 (“the 2002 Act”). The consequence of certification is that the Claimant was deprived of the right of appeal against the decision to refuse asylum pursuant to s.82 of the 2022 Act. The application for judicial review is, in part, a challenge to the certification decision and, in part, a challenge to the Defendant's decision to detain the Claimant between 11 January 2023 and 7 June 2023.

The Claimant is a male, now aged 27 years. He arrived in the United Kingdom on 11 January 2023 hidden in a lorry and he claimed asylum on 24 January 2023. The claim for asylum was based on, what the Claimant says is, a well-founded fear of persecution if returned to Albania as a result of a blood feud. The Claimant said that he fled Albania to avoid a blood feud dating back to the murder of his maternal uncle in 1997 by a distant cousin named X. When X subsequently died, one of the Claimant's uncles was accused of murdering him as an act of revenge. The Claimant says that he was then attacked by X's nephews in early 2022 and that he fled the country when the police failed to help him. Additionally, the Claimant contends that he fears money lenders from whom he had borrowed £15,000 to fund his journey to the United Kingdom.

The Upper Tribunal's current country guidance on blood feuds is contained within EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC). The Defendant's decisions, both to refuse the asylum claim and to certify it as clearly unfounded were made on 13 April 2023. The Defendant then, on 19 April 2023, set directions for the Claimant to be removed from the UK. In response, the Claimant submitted a handwritten letter giving further information about his asylum claim. The Defendant treated that letter as an attempt to make a ‘fresh claim’, which she declined to recognise under paragraph 353 of the Immigration Rules. Removal directions were cancelled on 26 April 2023.

The present application for judicial review was filed on 4 May 2023. Permission was refused on the papers by HHJ Karen Walden-Smith on 29 June 2023. The Claimant was released from detention on 7 June 2023 and an Amended Statement of Facts and Grounds was filed. The Defendant makes no objection to those amended grounds. This judgment relates to the renewed application for permission to commence judicial review proceedings on the amended grounds.

At the renewal hearing a request for an anonymity order was made and granted under CPR r39.2(4). The principles summarised in XXX v Camden LBC [2020] EWCA Civ. 1468, [2020] 4 WLR 165 are applicable. The Defendant's rejection of the asylum claim is based on arguments that the Claimant would benefit from state protection or internal relocation in Albania, rather than any challenge to his credibility. Therefore, a grant of anonymity is justified to minimise any risk to the Claimant.

Legal Framework

S. 94(1) of the 2002 Act empowers the Defendant to “ certify a protection claim or human rights claim as clearly unfounded”. Where satisfied that the claimant is entitled to reside in a state listed at s. 94(4) (which states include the Republic of Albania), that power is converted into an obligation, unless the Defendant is satisfied that the claim is not clearly unfounded (s. 94(3)). This serves to remove the discretion that the Defendant otherwise enjoys not to certify a claim even if persuaded that she has the power to do so: FR (Albania) [2016] EWCA Civ. 605 §56, Beatson LJ. The effect of certification is to deprive the claimant of the right to appeal the refusal of their protection or human rights claim to the First-tier Tribunal which they would otherwise enjoy under s. 82 of the 2022 Act.

The nature of the ‘clearly unfounded’ test was considered by the House of Lords in ZT (Kosovo) [2009] UKHL 6, [2009] 1 WLR 384 at §58 where Lord Carswell referred to the provisions as a “formidable power” conferred upon the Secretary of State and referred to the earlier iteration of the test as being where a claim is “clearly lacking in substance”.

Further, in the ZT case Lord Phillips said at §23:

“ Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational”

Therefore where, as in this case, there is no issue of primary fact, the approach set out was one of the court making up its own mind on the question of whether there was a realistic prospect of success before an immigration judge. This approach was subsequently endorsed by the Court of Appeal in QY (China) [2009] EWCA Civ. 680 and KH (Afghanistan) [2009] EWCA Civ. 1354 and R (YH) [2010] EWCA Civ. 116.

In 2016 the Court of Appeal again considered the approach to certification, emphasising on this occasion that the reviewing court's role remained supervisory, at §§48–62:

“ To conclude, the intensity of review in a certification case is at the more and possibly most intensive end of the spectrum to which I have referred at [48] above, but the jurisdiction remains a supervisory and reviewing one. It is also important not to lose sight of the fact that provisions in the 2002 Act give the Secretary of State a certain “gate-keeping” or “screening” function as to the availability of an in-country appeal by the process of certification. As I stated in R (Toufighy) v Secretary of State [2012] EWHC 3004 (Admin) at [73], while recognising the intensity of review in this context, care must be taken not inappropriately to deprive the Secretary of State of that function.”

Principles concerning the use of immigration powers to detain a person were stated by Woolf J. in R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB), [1984] 1 WLR 704. They were restated by Dyson LJ. In R (I) [2002] EWCA Civ. 888 at §46:

“i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.

47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.”

In terms of detention decisions, the Defendant's statutory powers are contained within Schedule 2 to the Immigration Act 1971. There are limits imposed upon those powers by public law principles established in Hardial Singh. In particular, a detainee cannot be detained for a period that is longer than is reasonable in all the circumstances and where it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period.

There can be a ‘realistic prospect’ of removal without it being possible to specify or predict the date when removal can reasonably be expected to occur and without any certainty that removal will occur. Also, the extent of certainty or uncertainty regarding removal can affect the balancing exercise but there must be sufficient prospect of removal to warrant continued detention when account is taken of all relevant factors. R(MH) v SSHD [2010] EWCA Civ. 1112.

The issue of public law errors on prior decisions affecting the legality of decisions to detain a protection claimant was further considered in R (Lumba) [2012] UKSC in which it was confirmed that the error must be one which is material in public law terms. Detention will be unlawful where there is a public law error in a distinct decision affecting the detainee and that decision ‘bears on and is relevant to’ the decision to detain.

The Decision Letter of 13 April 2023