The court set aside decisions of the secretary of state certifying the claims for refugee status of two asylum seekers as “clearly unfounded” under the Nationality, Immigration and Asylum Act 2002 s.94(3). The claims did not admit of only one answer before a First-tier Tribunal properly directing itself as to the law and the evidence, and were not therefore bound to fail.
Two asylum seekers (F and K) applied for judicial review of decisions of the defendant secretary of state to certify their applications for refugee status as “clearly unfounded” under the Nationality, Immigration and Asylum Act 2002 s.94(3).
K claimed that if returned he had a well-founded fear of persecution in Albania as a result of a blood feud. F’s claim on behalf of herself and her three children was also based on a fear of persecution as a result of a blood feud, and on a fear of domestic violence by her husband and her family. It was also based on her mental health and the impact on her ability to care for her children. The secretary of state had issued guidance to caseworkers making decisions on certification of such claims. F and K’s decision letters focused on the substantive claims for asylum before dealing with certification. Applications for judicial review had been refused. Their appeals against those refusals were allowed by the instant court and the substantive applications heard.
(1) It could not be said that K’s claim that there was a blood feud admitted of only one answer before a tribunal properly directing itself as to the law and the facts. In the light of the guidance in EH (Blood Feuds: Albania), Re  UKUT 348 (IAC), and the secretary of state’s acceptance of the position regarding the area of Albania K was from, it could also not be said that the challenge to the “sufficiency of protection” part of K’s case admitted of only one answer before a tribunal, EH applied. The unparticularised nature of K’s account about the reach of the family he feared might well mean that a tribunal would not accept that internal relocation was precluded, or that, if there was such relocation, national protection would not suffice. The question was whether, on the basis of K’s account and the objective evidence, the secretary of state was required to certify his case. It was not clear from the decision letter that the secretary of state had taken K’s case at its highest or that she had asked the question required in order to certify a claim, namely whether the claim, or the relevant part of it, admitted of only one answer before a tribunal and would be bound to fail. A tribunal properly directing itself could infer that the family K feared had a reach throughout Albania, R. (on the application of L) v Secretary of State for the Home Department  EWCA Civ 25,  1 W.L.R. 1230 and ZT (Kosovo) v Secretary of State for the Home Department  UKHL 6,  1 W.L.R. 348 applied. On one legitimate view, the claim might therefore succeed and was not clearly unfounded. The certification decision would be set aside (see paras 86-100 of judgment).
(2) The secretary of state had been entitled to conclude that F’s claim that she and her son were targets of an active blood feud was clearly unfounded, EH applied. The validity of the certification depended on the contention that relocation would be “unduly harsh” being clearly unfounded. The threshold was high, particularly where the persecution feared was by non-state agents, Januzi v Secretary of State for the Home Department  UKHL 5,  2 A.C. 426 followed. The objective evidence was that, although the standards that prevailed in Albania were lower than those in the UK, F would be able to live a relatively normal life there, judged by the standards prevailing there. It was not argued that F’s mental health issues were such that ECHR art.3 was engaged. However, the issues that had arisen in relation to the impact of her mental health on her children, and the relationship between the decisions on her asylum and human rights claims, meant that the facts of her case did not admit of only one answer before a tribunal properly directing itself. There was a reasonable doubt as to whether her claim might succeed and, therefore, it was not clearly unfounded, ZT (Kosovo) applied. The decision to certify her claim would be set aside (paras 101-118).
(3) Neither a claimant nor the court should assume that the secretary of state’s guidance was not being applied. They were, however, entitled to scrutinise decision letters and to consider the language in the context of the evidence before the decision-maker. The decision letters in the instant cases followed a pattern that was commonly used. They dealt with the asylum applications in detail and at length, but dealt with certification very briefly, in effect certifying the reasons given for rejecting the asylum claim. There was nothing wrong in the certification decision relying implicitly on the reasons for refusing the asylum application. However, it was important that the different requirements for the separate decisions were kept in mind and given separate consideration, W v Secretary of State for the Home Department  EWCA Civ 82, Times, April 4, 2016 considered. It had to be borne in mind that the presumption of regularity was an evidential presumption and, where the exercise of governmental power affected fundamental common law or Convention rights such as access to an independent court or tribunal, the decision-maker had to demonstrate that account had been taken of relevant matters and that the correct test had been applied, Bugdaycay v Secretary of State for the Home Department  A.C. 514 considered (paras 96-100).