Section 94(1) (S94 (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. These rules prescribe that where a protection and/ or human rights claim is refused caseworkers must consider whether certification is appropriate and cases that are clearly unfounded should be certified unless an exception applies.
But what does a certification under S94 entail in concrete? 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 (so called non-suspensive appeal).
The fundamental principle of this policy is to protect the integrity of the immigration system and deter unfounded claims by:
- preventing appeals delaying removal, where protection and human rights claims are clearly unfounded
- supporting the reduction in asylum support costs by enabling the claimant to be removed once a decision is made and certified rather than continue to be supported during an in-country appeal
To be clearly unfounded a caseworker must be satisfied that the claim cannot, on any legitimate view, succeed. The cases of Thangarasa and Yogathas  UKHL 36 and ZL and VL v SSHD  EWCA Civ 25 give the following guidance:
- a manifestly unfounded claim is a claim which is so clearly without substance that it is bound to fail
- it is possible for a claim to be manifestly unfounded even if it takes more than a cursory look at the evidence to come to a view that there is nothing of substance in it
The circumstance that a child is included in a claim does not necessarily prevent the Home Office from considering the claim as “clearly unfounded”. The best interests of a child should in theory be a primary consideration; however, in some occasions, the best interest of the child is considered satisfied by making sure that the child is returned with their family to their country of origin or residence as soon as possible where a claim is unfounded. During the assessment of a claim, the Home Office must consider the impact of certification on any children and whether the child may have a separate claim to remain, for example risk of female genital mutilation, in their own right. Ultimately, where a claim involves unaccompanied asylum seeking children (UASCs) who are not being granted any form of leave, for example because there are adequate reception arrangements in their country of origin, this does not automatically preclude a certification under s94 (1).
Some examples of protection claims “clearly unfounded” from S94 (1) are:
- No fear of mistreatment; if a claimant raises nothing that could be considered as amounting to a fear of mistreatment on return, for example, where a person states they are fleeing poverty or unemployment.
- No objective basis for feared mistreatment; if after taking account of the person’s circumstances and the objective evidence, it is clear that there is no arguable basis that the feared mistreatment will arise on return.
- Feared mistreatment does not amount to persecution; when it is clear from the objective evidence that the mistreatment feared, even if it did occur, would not amount to persecution or serious harm. The existence of previous mistreatment would not preclude certification if the treatment feared on return would not amount to persecution or serious harm.
- Sufficiency of protection; it is not necessary to show that the state will eliminate all risk to the claimant. It is enough to show that it is willing and able to take effective steps to prevent persecution or serious harm. For example, a state that operates an effective legal system for detection, prosecution and punishment of persecutory acts is taking adequate steps to prevent persecution even if it cannot solve every crime or prevent every assault.
- Internal relocation; if a claim is in relation to the claimant’s home area and internal relocation is available and it is reasonable to expect the claimant to relocate. This may apply if the claim is a fear of ill-treatment by non-state actors or rogue agents or where the authorities do not control the entire country.
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
If you think you have a protection or human rights claim and you want to verify whether it could be considered “clearly unfounded”, please contact our experts on 020 3693 7591.