Certification of a human rights claim as ‘clearly unfounded’ and how to avoid it
Prior to the relevant provisions of the Immigration Act 2014 coming into force in April 2015, individuals who had an immigration application refused which did not bring their leave to an end did not benefit from a right of appeal against the refusal decision. This affected people who had no leave to remain in the UK at the time that they made their application, who would have no right of appeal if an application was refused. Since April 2015, people who are overstayers at the time that they make their applications have been afforded a right of appeal if a human rights claim is refused.
However, the Home Office has power to certify a claim as clearly unfounded. The effect of this power, if exercised, is that while the applicant will have a right of appeal, it will only be exercisable from outside of the UK. Therefore, the only in-country remedy will be to Judicially Review the ‘clearly unfounded’ certificate.
The test for an immigration application being clearly unfounded is set out in a number of cases, and can be characterised as being a claim that is so clearly without substance that it is bound to fail. This is a very high test. However, since April 2015 the Home Office has been invoking their power to certify frequently, leaving many people without an in-country right of appeal.
This means that any human rights application must be prepared very carefully and with sufficient documentary evidence to support the basis of the claim. There are two reasons for this: first, to ensure that the claim is not certified as clearly unfounded, and second, so that there is a good evidential basis for a Judicial Review challenge, if the claim is certified.
The Home Office has set out their own guidance as to when they will consider a claim to be suitable for certification. Applicants who are making a human rights claim should consider whether their claim falls into any of these categories and what evidence they have to prove that their claim is not bound to fail.
Examples given by the guidance for private life claims include:
- a claim based on limited job prospects in their country of origin
- a 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
- a 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
- a claim by an adult aged 25 or over who has lived in the UK for less than 20 years as an adult, and the claim does not raise any circumstances which suggest there would be very 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
There are a number of reported cases which consider what is meant by ‘significant obstacles’ and ‘exceptional circumstances’ but these are going to be very fact sensitive to an individual’s case.
In relation to a claim based on family life in the UK, the Home Office guidance states that the following cases may be suitable for certification:
- no evidence of a child
- no evidence of a genuine and subsisting relationship between parent and child, for example, no evidence that the parent sees the child or has any involvement in their life, or, in cases where the claimant and child are not related or living together, no evidence of a parental relationship
- child is aged 18 or over and there is no evidence of any arguably unusual level of dependency or any exceptional features in the claim
- child is not British and has been in the UK for less than 7 years and there is no evidence of any arguably exceptional circumstances
- no evidence that the relationship is genuine
- the relationship is fairly new and falls into the category of a more temporary ‘girlfriend/boyfriend’ relationship rather than a permanent and enduring relationship akin to marriage or civil partnership
- 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
It is clear from these examples, that the Home Office is looking specifically at the strength of evidence submitted with the application and a simple claim to have a child or partner that is not supported with evidence will be not sufficient to avoid certification.
Human Rights Claim – UK Immigration Barristers
For further advice about making a human rights claim, contact our UK immigration barristers on 0203 617 9173 or by email to firstname.lastname@example.org