Human rights claim certified as ‘clearly unfounded’? Some points to consider

Recently, we have seen a number of refusal decisions certifying a human rights claim as clearly unfounded under s.94 of the Nationality, Immigration and Asylum Act 2002. The effect of this is that an appeal against the refusal decision can only be brought once the applicant left the UK.

Consequences of appealing from outside the UK

One disadvantage of having to appeal from abroad, aside from the obvious cost implications and inconvenience, is that an applicant will not be able to remain in the UK during the lengthy appeal period. This can, for instance, be decisively detrimental to one’s future indefinite leave to remain application on the grounds of 10 years continuous lawful residence in the UK. The ability to remain in the UK during the appeal period (and possibly accruing further lawful residence under s.3C of the Immigration Act 1971) is therefore highly valuable to many.

Challenging a clearly unfounded certificate

The only way to challenge the lawfulness of a certification decision is through Judicial Review proceedings. But applicants must be cautious not to issue proceedings without first properly considering the merits.  Applicants must also be aware of the cost consequences if a Judicial Review application is ultimately unsuccessful. It should also be noted that lodging Judicial Review proceedings does not extend one’s s.3C leave – it is important to bear this in mind because overstaying your leave by more than 30 days can lead to a mandatory re-entry ban of at least one year.

Grounds for challenging clearly unfounded certificates

In many certification decisions that we have come across, and successfully challenged, two noticeable errors have been made.

First, decisions that a human rights claim is clearly unfounded often fail to give adequate reasons for certifying the claim. The Secretary of State must provide substantial justification when seeking to limit one’s ability to access the courts, not least if the contemplated interference is with one’s fundamental rights. Therefore, it is often insufficient for the certification decision to simply regurgitate the reasons for refusing leave to remain as a basis to certify a claim as clearly unfounded.

The standard wording for certification is usually along the lines of “you have not satisfied the requirements of the Rules and have not advanced any exceptional circumstances for leave to be granted outside of the Immigration Rule and so your claim is clearly without merit”. But this is simply the reason why the application was refused, not why the claim is so clearly unfounded that it is bound to fail before the First-tier Tribunal.

There is a distinct difference between refusing and certifying a human rights claim, and the former does not automatically lead to the latter. Something more is required to show the hopelessness of the claim. Therefore, if the certification section of the decision is brief and lacks any elaboration as to why the decision is clearly unfounded, it may be arguable that the decision is unlawful.

Whilst a failure to provide adequate reasons may be considered immaterial in a Judicial Review claim because the Judge would have to consider the question him/herself, the courts have also proved willing to accept that the Secretary of State cannot continue to make unlawful decisions that lack in cogent reasons and then avoid adverse findings on the basis that the error is immaterial.  

Second, and usually leading from the Secretary of State’s failure to give adequate reasons, the Secretary of State often fails to addressed the correct test. When considering whether to certify a claim as clearly unfounded, the question is whether the human rights claim is so unfounded that the First-tier Tribunal Judge is bound to dismiss it. The question is an objective one and does not depend on the opinion of the Secretary of State. A certification decision, through the reasons for refusal letter, must demonstrate that the decision maker had the correct test in mind.  This does not happen as often as it should.

One way to reduce the risk of certification is to front-load the application with as much documentary evidence as possible to demonstrate the established private and family life in the UK. It would be prudent to do so even on long residence ILR applications if there are any concerns regarding certification or if the right to an in-country appeal is particularly important (which is probably in most cases).

And finally ….

As explained above, Judicial Review can be a lengthy, complex, and expensive process. Those who have had their human rights claim certified should seek advice to properly consider the merits of a challenge and any other options available before deciding to bring Judicial Review proceedings.

Contact our Immigration Barristers

For expert advice in relation to challenging a decision to certify your human rights claim as clearly unfounded, contact our Immigration Barristers in London on 0203 617 9173 or complete our enquiry form.