Clearly unfounded claims and the two stage reasoning process: Section 94 Certification policy updated following FR & KL 2016

On 12 April 2017, the Home Office’s  Section 94 Certification Policy Guidance was updated  in order to, “provide further clarification of when to certify a human rights claim and to reflect the need to give reasoning when certifying a claim as set out in FR & KL (2016) v SSHD EWC CIV”.(Certification of protection and human rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims).

 

The effect of Section 94 certification:

 

Section 94(1) of the Nationality, Immigration and Asylum Act 2002 states that the Secretary of State may certify a protection or human rights claim as clearly unfounded. The effect of certification under section 94 is to restrict the right of appeal against refusal so that the claimant can only appeal once they have left the UK (referred to as a non-suspensive appeal).

 

Any attempt by the claimant to lodge an appeal against a certified claim whilst still in the UK must be rejected by the tribunal as invalid.

 

When the tribunal considers the appeal of the person outside the UK the appeal will be considered as if the appellant had not been removed from the UK.

 

Home Office policy is that in  all cases where a protection and/ or human rights claim is refused  Home Office  caseworkers must consider whether certification is appropriate and cases that are clearly unfounded should be certified unless an exception applies.  The legal test as to what amounts to a clearly unfounded claim is the same for claims certified on a case by case basis as for those from designated states.

 

Each claim must be considered on its individual merits and should only be certified if the Home Office caseworker is satisfied that the claim is clearly unfounded.

 

Where a human rights claim is refused but is not clearly unfounded, consideration must also be given as to whether it should be certified under section 94B.

 

All representations received following the service of a section 94 certified decision must be considered in line with the case ZT(Kosovo) [2009] UKHL 6 which stated that paragraph 353 of the Immigration Rules must be applied to all further submissions in section 94 cases.

 

Further submissions after a previous refusal of a protection or human rights claim should not be certified under section 94. Where further submissions are rejected and there is no fresh claim under paragraph 353 there is no claim to certify. If further submissions are accepted as a fresh claim this means the claim has a realistic prospect of success at appeal so it cannot be clearly unfounded.

 

 

Certification- Designated State:

 

Section 94(4) of the 2002 Act contains a list of designated states.  Section 94(3) provides that when refusing a protection and/ or human rights claim from a person entitled to reside in one of the listed states, the Secretary of State must certify the claim unless satisfied that the claim is not clearly unfounded.  A state is included on the list (‘designated’) if there is in general in that state or part of it no serious risk of persecution of persons entitled to reside in that state or part of it. Where a person is entitled to reside in a designated state or part of it removal there will not in general contravene the UK’s obligations under the European Convention on Human Rights (ECHR).

 

A state can be included on the list at 94(4) by section 94(5) which allows the Secretary of State for the Home Department (SSHD) to designate:

 

  • all of a state

  • a geographical part of a state

  • a state in respect of a description of a person

  • a geographical part of a state in respect of a description of a person

 

Case by case certification:

 

Section 94(1) of the 2002 Act allows the Secretary of State to certify a protection and/ or human rights claim as clearly unfounded on a case by case basis.

 

A case can be certified under section 94(1) where the claimant is not entitled to reside in one of the designated states. It can also be used where the claimant is entitled to reside in a designated state but falls within a category not covered by the designation, as long as the claim is clearly unfounded on its facts.

Examples of when the Home Office consider a protection claim can be certified:

 

  • No fear of mistreatment

  • No objective basis for feared mistreatment

  • Feared mistreatment does not amount to persecution

  • Where there is sufficiency of protection

  • Where internal relocation is available

Examples of when the Home Office consider a human rights claim can be certified:

 

A human rights claim may be suitable for certification where:

 

  • there is a partner application but the claim does not raise any circumstances which suggest that family life with their partner could not continue overseas and there is no evidence of any exceptional circumstances

  • the basis of the application is as a partner, but there is no evidence that the relationship is genuine or subsisting

  • the basis of the application is as a partner with a dependent child but there is no evidence of a genuine and subsisting parental relationship between parent and child, for example, no evidence that the parent sees the child or has any involvement in their life

  • the basis of the claim is as a parent but there is no evidence of a child

A claim based on other family relationships may be suitable for certification where:

 

  • the Article 8 claim is based on a relationship other than partner, child or adult dependent relative, such as two adult siblings or a parent/ child relationship where the child is aged 18 or above, and there is no evidence of any arguably unusual level of dependency or exceptional features in the claim

A private life claim may be suitable for certification where there is a:

 

  • claim based on limited job prospects in their country of origin

  • claim that private life would be breached owing to a medical condition but no evidence of this condition has been provided, the condition is not serious or treatment is available in country of return

  • claim that a student or worker would be unable to continue with their studies or work and there is no evidence of an established private life other than normal level of social interaction as a student or worker

  • claim by an adult aged 25 and the claim does not raise any circumstances which suggest there would be significant obstacles to the claimant’s integration into the country to which they would have to go if required to leave the UK, and there is no evidence of any exceptional circumstances

 

Article 8 claims which may not be suitable for certification:

 

Non-exhaustive list of examples of Article 8 claims not likely to be suitable for certification:

 

  • there is a child of the family who is a British Citizen

  • there is a child of the family who is not a British Citizen but has lived in the UK for 7 years or longer

  • there is a child who is not British or who has been in the UK for less than 7 years, where there is evidence of potential exceptional circumstances or compassionate or compelling grounds that may mean it is in the child’s best interests for them to remain in the UK

  • there are obstacles to the applicant continuing family life outside the UK but these obstacles are not insurmountable

  • there is evidence of circumstances that may amount to exceptional circumstances (though the Home Office caseworker does not consider that the circumstances are exceptional and therefore the claim falls to be refuse

 

When not to certify a clearly unfounded claim- exceptions:

 

Claims that are clearly unfounded should not be certified under section 94:

 

  • if an individual makes both a protection and human rights claim and only one of these claims is clearly unfounded

  • except cases where the protection claim is certifiable and the human rights claim can be certified under section 94B

  • where extradition is an issue and the process is at the beginning, extradition is unlikely to be appropriate

  • if any form of leave is granted

 

In relation to FR & KL ( citation as FR & Anor (Albania), R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 605 ), the Guidance instructs  as follows to  Home Office Caseworkers:

 

The decision letter should make clear the provision under which the claim is certified for example section 94(1) or section 94(3) of the Nationality, Immigration and Asylum Act 2002. However, detailed reasons for certification must be given regardless of whether certification is under section 94(1) or section 94(3).

 

The case of FR & KL (2016) v SSHD EWCA CIV 605 gave the following guidance:

 

  • it is important that separate consideration is given to the decision to refuse the claim and on the decision to certify

  • there is a 2 stage reasoning process in play. It is not permissible to have an approach that simply says because the claim is rejected the claim is rejected as clearly unfounded

 

When you have decided to refuse the claim you must then consider whether the claim is clearly unfounded. Where you decide the claim is clearly unfounded you must set out the reasons why you have decided the claim is clearly unfounded.

 

You should make it clear when considering certification you have not taken into account credibility.

 

However if you are certifying on the basis that the claim is not credible you must set out on what basis you are satisfied that nobody could believe the claim.

 

You should provide reasons why the claim is clearly unfounded. For example in a protection claim where you consider that the claim is clearly unfounded because there is sufficiency of protection you should make that clear at the point in the letter where you are certifying the claim, referring to the relevant case specific and country information.

 

The same principle applies to a human rights claim. For example where family life with a partner is raised you should explain why the claim is clearly unfounded, which can include references to lack of evidence of a genuine relationship or no evidence that family life cannot continue overseas.

 

However the fact that a claim does not succeed under the rules is not of itself sufficient reason to certify a claim. In order to certify the claim the decision maker must be satisfied that the claim is ‘clearly unfounded’.

 

Relevant caselaw and  principles as reviewed in FR & KL:

 

The principles are expressed by Lord Phillips in R (L and another) v Secretary of State for the Home Department and the Lord Chancellor’s Department [2003] EWCA Civ 25, [2003] 1 WLR 1230, and the speeches in the House of Lords in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 438.  The important guidance given by Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 at [16] – [17] and [20], that a reviewing court must ask itself essentially the questions which would have to be asked by a tribunal considering an appeal and then listing what have become known as the five “Razgar” questions which was explicitly endorsed by three of their Lordships in ZT’s case, must also be borne in mind.

 

  • R (L and another) v Secretary of State for the Home Department and the Lord Chancellor’s Department [2003] EWCA Civ 25, [2003] 1 WLR 1230: -This was the first case on certification of a claim as “clearly unfounded” under the 2002 Act to reach the Court of Appeal. It is referred to in the Secretary of State’s Guidance as “ZL and VL v SSHD“. Lord Phillips MR stated at [43] that Parliament’s assumption was that in general in the listed states there will be no serious risk of persecution of persons entitled to reside in that state and that claims of applicants from any of them are likely to be clearly unfounded.

  • Lord Phillips stated (at [44] and [45]) that, although the listed states are ones where in general there is no risk of persecution, inclusion in the list does not establish that conclusively and that it is important to give careful consideration to the facts of the individual case as well as to the import of the body of evidence that is likely to have accumulated in relation to the particular state under consideration. He stated that “[t]he fact that the state is listed … is not a substitute for this exercise”.

  • Lord Phillips stated (at [56]) that the test for certifying a claim as “clearly unfounded” is an objective one. It “depends not on the Home Secretary’s view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had” and that “[a] claim is either clearly unfounded or it is not”. He stated (at [57]) that decision-makers will:“i) consider the factual substance and detail of the claim,  ii) consider how it stands with the known background data,  iii) consider whether in the round it is capable of belief , iv) if not, consider whether some part of it is capable of belief,   v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.”

  • He then considered the difference between the position in such a case and that where she is required to certify a claim “unless satisfied that it is not ‘clearly unfounded'”. He stated (at [58]) that: “[T]here is no intelligible way of applying [the statutory provision] except by a similar process of inquiry and reasoning …. In order to decide whether they are satisfied that the claim is not clearly unfounded, [decision-makers] will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded.”

  • R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, [2003] 1 AC 920, [14]:- “Before certifying as “manifestly unfounded” an allegation that a person has acted in breach of the human rights of a proposed deportee the Home Secretary must carefully consider the allegation, the grounds on which it is made and any material relied on to support it. But his consideration does not involve a full-blown merits review. It is a screening process to decide whether the deportee should be sent to another country for a full review to be carried out there or whether there appear to be human rights arguments which merit full consideration in this country before any removal order is implemented. No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing this material, he is reasonably and conscientiously satisfied that the allegation must clearly fail”.

  • ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 438 :- the Court of Appeal quashed the Secretary of State’s certification under section 94 of ZT’s claim for asylum but the House of Lords allowed the Secretary of State’s appeal. The relevance of that decision is what was stated in the speeches of their Lordships about the correct approach for a court considering a judicial review of the certification rather than the principal issue before the House. The principal issue, the relationship between certification of a claim as “clearly unfounded” under section 94 and the “fresh claim” provisions in rule 353 of the Immigration Rules about which there have been divergent views,  was not relevant IN FR & KL(2016) because the appeals were only concerned with section 94.

  • The approach expected of the Secretary of State when considering certification and that the courts must exercise when considering a challenge to certification has been described as “anxious scrutiny”: see e.g. ZT (Kosovo) per Lord Phillips at [21] and Lord Kerr at [58].

  • It is generally accepted that the level of scrutiny Parliament has required the Secretary of State to exercise sets “a high threshold” and the power to certify has been described as “draconian”: see ZT (Kosovo) per Lord Hope at [52] and Lord Carswell at [58].

  •  As to the approach of a court considering a judicial review of certification, it was stated in  ZT (Kosovo)  that the court was not to substitute its own view as to whether the claims were “clearly unfounded” but should apply the normal principles of judicial review. These (see Lord Phillips at [21]) involve “the anxious scrutiny that is required where human rights are in issue”. Lord Phillips also stated that, while as a matter of principle judicial review is the correct approach, in a case such as ZT’s, either approach involved the same mental process. He stated (at [22]) that this was “because the test of whether a claim is ‘clearly unfounded’ is a black and white test”, and the answer could not, for instance, “depend upon whether the burden of proof is on the claimant or the Secretary of State” although section 94 makes express provision in relation to the burden of proof. Lord Phillips then cited paragraphs [56] to [58] of his judgment in R (L and another).

  • In ZT'(Kosovo)’ s case there was no dispute of primary fact. Lord Phillips stated (at [23]) that, in such a case: “[T]he 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 challenge. 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.”

  • ZT'(Kosovo), Lord Neuberger agreed, but with a qualification. He stated (at [83]) that, while it is hard to think of any circumstances where a court would not quash the Secretary of State’s decision that a claim is “clearly unfounded” where the court concludes that it is not, but stopped short of suggesting that there is a hard and fast rule to that effect. Lord Hope dissented on the principal issue but his endorsement (at [54]) of Lord Bingham’s approach in Razgar’s case was agreed with by Lord Neuberger and Lord Carswell. Lord Hope stated that the key points in Lord Bingham’s opinion are: “a reviewing court must consider how an appeal would be likely to fare before an adjudicator as the body responsible for deciding any appeal, and … must assess the judgment which would or might be made by an adjudicator on appeal. … It may become clear that the quality of the claim is such that the facts of the case admit of only one answer. But the process … is essentially one of review.” Lord Carswell’s agreement is at [65]. Lord Neuberger stated (at [82]) that the proper approach to be adopted by the court to a challenge to a certification that a claim is “clearly unfounded” under section 94 is “the normal judicial review test, with the addition of anxious scrutiny” which he stated is consistent with the guidance given by Lord Bingham in Razgar’s case.

  • 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, “….But it is important not to lose sight of the fact that the jurisdiction remains a reviewing jurisdiction, and that the, admittedly labyrinthine, legislative provisions in the 2002 and 2004 Acts give the Secretary of State a certain “gate-keeping” function as to the availability of an appeal by the process of certification. Care must be taken not inappropriately to deprive the Secretary of State of that function”.

FR & Anor (Albania), R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 605:

 

The Appellants in the two appeals before the Court of Appeal were  citizens of Albania. The Secretary of State rejected their applications for refugee status and their human rights claims, and certified both applications as “clearly unfounded” under section 94(3) of the 2002 Act. The consequence of certification was  that the appellants are only permitted to appeal against the Secretary of State’s decisions once they had left the United Kingdom.  Judicial review proceedings challenging the decisions to certify their claims were launched. When the claims reached the Court of Appeal, the  issue  was  whether the certification of the asylum claims of the Appellants were  flawed on public law grounds.

 

The Court of Appeal’s considerations were as follows:

 

  • In general, the provisions empower but do not require the Secretary of State to certify a claim, but having regard to the terms of section 94(3), in the case of those entitled to reside in one of the States listed in subsection (4), she is required to certify the claim unless she is satisfied that it is not clearly unfounded.

  • It clear from the authorities that the nature of the decision to certify means that when the administrative decision under challenge is said to be one which may put the applicant’s life at risk the supervisory jurisdiction by judicial review is exercised in an intensive way.

  • The intensity of review in a certification case is at the more and possibly most intensive end of the spectrum 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.

  • The legal test for certification is whether an appeal would be bound to fail in the First-tier Tribunal. In the language of the Secretary of State’s guidance to caseworkers the decision-maker “must be satisfied that the claim cannot, on any legitimate view, succeed”.

  • It is common ground that consideration of whether a claim is clearly unfounded will necessarily take into account the nature of what a claimant must prove in order to succeed. There must be careful consideration of the factual substance and detail of the claim put forward by the claimant and material relied upon by him or her in support, and the import of the body of objective evidence accumulated in relation to the state in question. In the words of Lord Hope in ZT (Kosovo) [2009] UKHL 6 at [52], the focus is on the “quality” of the claim. It is necessary to consider whether, in the round, the claim or some part of it is capable of belief and, if so, whether if believed in whole or in part it is capable of coming within the Refugee Convention or, as the case may be, the scope of the ECHR. The Secretary of State must consider what approach would be taken by the First-tier Tribunal, properly directing itself as to the law and as to the facts on the evidence.

  • What must be assessed is the claim which has in fact been put forward, including the answers in interview and the contents of witness statements, the detail given and any supporting evidence submitted. To do otherwise is to let a genuine subjective fear be conclusive, whether or not it is objectively well-founded and regardless of what the objective evidence about a state is.

  • Two important parts of the test for a well-founded claim for asylum are whether the country of nationality is either unwilling or unable to offer effective protection from persecution, and whether any persecution could be avoided by internal relocation. As to the former, a person who fears persecution from a non-state agent, as the Appellants did in the words of Lord Hope in Horvath v Secretary of State for the Home Department [2000] UKHL 37, [2001] 1 AC 489 at 499, “must show that the persecution which he fears consist[s] of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection.” Absent that, Lord Hope stated that “the risk, however severe, and the fear, however well-founded, do not entitle him to the status of a refugee”.

The two stage  test clarified:

 

  • The Court of Appeal considered the submission that a number of expressions in the decision letter, while legitimate in the context of the determination of the application for asylum, were not consistent with the test for certification. Some statements made in the refusal decision were reasons the Secretary of State gave for rejecting the claim for asylum, and while they may well have been reasons entitling her to do so they do not address the test: “would the claim be bound to fail if considered by the tribunal” and they do not take the claim “at its highest”. The Court of Appeal made it clear that in some circumstances, for example where such statements do not go to the heart of the case and where the document overall shows that the decision-maker has grappled in substance with the test for certification, the use of such language will not affect the legality of the certification. In the circumstances of this particular case, however, the statements were problematic. They highlighted the importance of giving separate consideration to the decision on an application for asylum, where the Secretary of State decides whether it should succeed, and the decision on certification, where she has to decide whether the application is “clearly unfounded” so that it is bound to fail and ought to be certified.

  • It was submitted that there was concern that the Secretary of State sometimes appears to conflate the asylum and certification decisions by reasoning which states or is understood to assume that because the Secretary of State is not satisfied that the requirements for refugee status have been met the international protection claim is “bound to fail”.

  • The Court of Appeal stated that the decision letters in the appeals followed a pattern that is commonly used by those deciding applications of this sort. They deal with the applications for asylum in detail and at length, but deal with certification very briefly, in effect certifying for the reasons given for rejecting the asylum claim. In the instance case, in both KL and FR’s cases, after consideration of all evidence available and the rejection of their applications for asylum all that was said about certification is that, “in addition”, it has been decided that the claim is clearly unfounded.

  • The Court of Appeal clarified that there was nothing wrong in the certification decision relying implicitly, as these decisions did, on the reasons for refusing the application for asylum. But, given the style of decision letter used, it was important that those considering certification keep in mind and give separate consideration to the different requirements of the decision on the application for asylum and the decision on certification.

  • The Court of Appeal stated that in the present context, because of the structure of the decision letters, the analysis used in rejecting the application for asylum together with the other material before the Secretary of State and the court was all that was available to the court considering certification. The court would be concerned with the substantive integrity of the analysis displayed in the decision letter when giving the reasons for rejecting the application for asylum. If that is consistent with there being more than one view of the claim, or states only that the claim is “undermined” (as opposed to being one which no tribunal properly directing itself as to the law and as to the facts on the evidence before it could accept), or as simply being the Secretary of State’s view, a court exercising the intensive review that is undertaken in certification cases may conclude that the Secretary of State’s own analysis has not shown that the claim is bound to fail in the tribunal. It has to be borne in mind that the presumption of regularity is an evidential presumption and, where the exercise of governmental power affects fundamental common law or Convention rights such as access to an independent court or tribunal, the decision-maker must demonstrate that account has been taken of relevant matters and the correct test has been applied.

  • The Court of Appeal concluded that the crucial point to emphasise was that there is a two-stage reasoning process in play. The style of drafting adopted in the case, although not of itself objectionable, should not be permitted to lend any encouragement to an approach: “because I have rejected the asylum claim therefore I certify as clearly unfounded”.  That was not permissible.

Conclusion

 

Despite the guidance in FR & KL, Home Office caseworkers continue to follow a pattern of  drafting deprecated by the Court of Appeal. The Section 94  Guidance has been recently  amended,  however  the relevant paragraphs within the guidance  referred to above attempting to summarise the effect of  FR & KL,  in practice,  may not go  far enough in  encouraging a proper appreciation of the  significance of that case.

 

Upon receipt of an adverse decision with offending reasoning contrary to FR & KL, an appropriately  drafted letter before claim can  result in the reviewing Home Office Caseworker withdrawing the initial  adverse decision on certification, obviating the possible need to proceed with a judicial review challenge.

 

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