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Immigration & Asylum Update: Clearly Unfounded Certificates; a Settled Approach?

Kenworthy's Chambers | November 13, 2018
What is the role of the Court or Tribunal when assessing a challenge against a certification of an asylum claim as ‘clearly unfounded'?

What is the role of the Court or Tribunal when assessing a challenge against a certification of an asylum claim as 'clearly unfounded'. This is a question that has vexed the higher Courts for some time now and, it appears, continues to do so, notwithstanding the Court's ongoing attempts to answer it.

It was a question tackled by Craig Holmes in a recent application for permission to proceed to Judicial Review. Permission was ultimately granted, but the High Court Judge hearing the matter first sought some guidance on the approach to be applied, particularly in light of the Court of Appeal in FR & Anor (Albania), R (On the Application Of) v Secretary of State for the Home Department [2016] EWCA Civ 605, the latest in the saga of cases seeking to give guidance to the lower Courts and Tribunals on the approach to be taken when considering Judicial Review challenges to so-called 'clearly unfounded' certificates.

The Court of Appeal in FR & Anor in fact signalled something of a shift from what has long been understood to be the correct approach, namely, whether the Court or Tribunal hearing the challenge is permitted to determine for itself whether a particular claim is clearly unfounded. It had long been considered that given the threshold for such a conclusion was so high that the question was one "susceptible to only one rational answer", then the Court was permitted in a claim for judicial review of such a certificate to depart from its typically supervisory role to delve into the merits of the underlying case, and ultimately reach a conclusion not only as to whether the decision to certify was irrational, unlawful, or bad for some other public law wrong, but to decide as to whether or not the underlying claim was, in fact, clearly unfounded.

The sense in such an approach is difficult to deny, and the logic difficult to defeat. It puts the Court in the best possible position to resolve the issue in dispute between the parties and prevent the now phenomenally common and disingenuous practice of the Home Office, in the face of a successful challenge to one of its decisions, simply reissuing the very same decision, time after time, with little more than a new date included by way of amendment. However, notwithstanding the irresistibly attractive nature of such an approach, the extent to which this approach has survived the Court of Appeal judgment in FR & Anor is a question open to debate.

In Craig's case, the matter was canvassed by the High Court Judge considering the application for permission to proceed, albeit that it was unnecessary for the purpose of that hearing to reach a concluded view on the niceties of the approach to now be applied in practice, nor as to whether the Court of Appeal's judgment in FR & Anor provides a complete answer to the question, in any event. Nevertheless, it does reopen a question largely settled for some time, and risks diluting the effectiveness of individual's central remedy against increasingly wayward Home Office decisions.