Remedy for removal following certification is to be returned
In XB v The Secretary of State for the Home Department  EWHC 2557 (Admin) the claimant successfully challenged the Secretary of State’s certification of her fresh claim for asylum as being clearly unfounded. The claimant had, by this point, already been removed from the UK, such that the learned judge directed the Secretary of State to ensure that the claimant re-enter the UK so that she could attend her appeal.
The claimant sought asylum or humanitarian protection on the grounds that she would be persecuted in her home country (referred to as ‘Aland’) because of her criminal conviction in the UK for prostitution of other girls. The claimant also asserted that she had been a victim of trafficking (though not in those terms). This latter claim was not, however, corroborated by the National Referral Mechanism, who found that the claimant was not and had not been a victim of trafficking. The First Tier Tribunal in that case were willing to accept that the Claimant had been a victim of trafficking, but that nevertheless as time moved on, ‘the situation changed’. The First Tier Tribunal found, however, that there was no risk of persecution to the claimant, as it found that there was no reason why the authorities should be aware of the Claimant’s convictions in the UK.
It transpired, however, that a Home Office official noted that persons at the Aland embassy had been notified that the claimant was in prison, and commented that it was inevitable that they would come to know the details of her convictions. The note went on to state that there were reports that abuses of detainees or suspects in Aland were widespread and included torture. This information was not disclosed to the First Tier Tribunal, and the claimant’s claim was rejected.
In September 2013, the claimant made a fresh asylum claim which was rejected and certified as clearly unfounded. This certification was the subject of the case before the Administrative Court.
The learned judge found that the decision to certify was clearly unlawful; no reasons for certifying had been given in the decision letter. Furthermore, the judge held that in his view it cannot be said that an appeal would have been bound to fail.
In respect of remedy, the Secretary of State submitted that the fact that by the time of the hearing the claimant had been in Aland for some 21 months without any persecutory action meant that the claimant did not need to be returned and she could pursue her appeal from abroad. The judge disagreed with this however, ordering that the claimant be enabled to return to the UK.
It is interesting that the judge states that because the certification was unlawful, the “usual order” would be that the claimant be returned to the UK, suggesting that this is irrespective of the risk of persecution to the claimant once returned.
(Nevertheless, two further reports were produced in respect of this issue, one which stated that it was not surprising that the claimant had remained unpersecuted for any length of time, because Aland was a “bureaucratic and authoritarian regime”, but that nevertheless the claimant faced a high risk of being detained, tortured and prosecuted. The other report focused on double jeopardy, finding that the risk to the claimant of arbitrary arrest and detention, with a serious risk of severe ill-treatment including torture was high. The learned judge considered these two reports as powerful evidence that the claimant’s appeal was not bound to fail.)
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