UK - R (FR and KL (Albania)) v Secretary of State for the Home Department, 23 June 2016
| Country of Decision: | United Kingdom |
| Country of applicant: | Albania |
| Court name: | The Court of Appeal (Civil Division) |
| Date of decision: | 23-06-2016 |
| Citation: | [2016] EWCA Civ 605 |
| Additional citation: | Case No: C2/2015/2903; C2/2015/3021 |
Keywords:
| Keywords |
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Best interest of the child
Description
Legal principle required to be applied as a primary consideration when taking measures concerning minors in the asylum process. “Any determination or assessment of best interests must be based on the individual circumstances of each child and must consider the child’s family situation, the situation in their country of origin, their particular vulnerabilities, their safety and the risks they are exposed to and their protection needs, their level of integration in the host country, and their mental and physical health, education and socio-economic conditions. These considerations must be set within the context of the child’s gender, nationality as well as their ethnic, cultural and linguistic background. The determination of a separated child’s best interests must be a multi-disciplinary exercise involving relevant actors and undertaken by specialists and experts who work with children." |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Internal protection
Description
Where in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country. |
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Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Child Specific Considerations
Description
Application of a child-sensitive process and assessment of protection status, taking into account persecution of a child-specific nature and the specific protection needs of children. “When assessing refugee claims of unaccompanied or separated children, States shall take into account the development of, and formative relationship between, international human rights and refugee law, including positions developed by UNHCR in exercising its supervisory functions under the 1951 Refugee Convention. In particular, the refugee definition in that Convention must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children. Persecution of kin; under-age recruitment; trafficking of children for prostitution; and sexual exploitation or subjection to female genital mutilation, are some of the child-specific forms and manifestations of persecution which may justify the granting of refugee status if such acts are related to one of the 1951 Refugee Convention grounds. States should, therefore, give utmost attention to such child-specific forms and manifestations of persecution as well as gender-based violence in national refugee status-determination procedures.” See also the best interests principle. |
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Vulnerable person
Description
Persons in a vulnerable position, such as"Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence. Note: Directive 2011/36/EU defines a position of vulnerability as a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved." |
Headnote:
This case dealt with the issue of whether the Secretary of State’s certification of the asylum claims of the two independent applicants as “clearly unfounded” was flawed on public law grounds, and the important difference between a decision on refugee status itself and a decision on a claim being “clearly unfounded”.
Facts:
Both applicants had independently claimed asylum in the UK based on a well founded fear of persecution if returned to Albania, as a result of a blood feud and lack of protection from the state.
As Albania was listed in sec 94(4) Nationality, Immigration and Asylum Act 2002, the Secretary of State’s obligation was to certify the claim as clearly unfounded unless satisfied that it was not clearly unfounded. The consequences of such certification would be that the applicants could be removed from the UK before having the chance to appeal.
KL’s claim was based on an alleged blood feud stemming from his father killing a man from an allegedly powerful political family, for which his father (having first survived an apparent revenge attack) was then sentenced to 25 years in prison. KL had gone into self-confinement at home, an established means of protecting oneself from the consequences of a blood feud under Albania Kanun law.
The Secretary of State had certified KL’s claim as unfounded based on the fact that there was little evidence to demonstrate an active blood feud, and in any event it was not clear that the state could not afford him sufficient protection, and he could safely relocate within Albania.
FR’s claim was more complicated. Not only did her husband badly injure another man, allegedly triggering a blood feud, but her husband’s violence and death threats were also directed towards her, eventually leading her to leave him, which in turn triggered death threats against her from her own family. She was responsible for three children and had developed severe mental illness.
The Secretary of State had certified FR’s claim as unfounded based on the fact that there was no evidence that she was being targeted by the family of the man whom her husband had injured, or that the state could not in any event protect her, either from that family, her own family or from the domestic violence of her husband, or provide for her healthcare needs, and relocation within Albania was therefore an option for her.
Decision & reasoning:
The Court set aside the Secretary of State’s decision to certify both claims.
The Court acknowledged that the power to certify is an important one, giving the Secretary of State the power to act as “gate-keeper” to ensure clearly unfounded claims do not take up valuable resources in the in-country appeals system. It is a “draconian” power though, separate from the asylum claim determination itself, and to which a different standard applies. Indeed the Secretary of State’s own guidance stated that for the purposes of certification the claim must be taken “at its highest; as if all the claimed historic events did in fact occur”. Only if, on that basis, the claim would admit of only one answer before an immigration tribunal, can the certification be given.
The Court did not find this to be the case for the KL claim, as it believed there were grounds on which the claim could succeed before a tribunal.
Indeed some of the Secretary of State’s stated grounds for certifying the case (eg inconsistent evidence from the applicant), whilst they would have been appropriate in assessing the claim for asylum, cast doubt on the consistent application of her own test for certifying. This was because they did not seem to be taking the claim “at its highest”, and did not address the correct standard of whether the claim was “bound to fail” at the tribunal, but rather simply whether it would fail.
The case of FR was less clear cut. The Court found that the Secretary of State was entitled to conclude that FR and her children were not targets of an active blood feud, and that it was practical for her to relocate in Albania where neither her husband nor family had access to her.
However there was the question of the impact of any such relocation on the mental health of the applicant, and on the best interests of her children (to be considered under sec 55 of the Borders, Citizenship and Immigration Act 2009). Whilst this would have greater force in the context of a human rights claim under article 8 ECHR, rather than under the Refugee Convention, it meant that “the quality of her claim is not such that the facts of her case admit of only one answer before a tribunal”.
Outcome:
The decisions certifying the claims of the applicants as “clearly unfounded” were set aside.
Observations/comments:
The question of when a claim can be certified as “clearly unfounded’ has produced a large body of decisions in the UK, including at the highest level of the House of Lords/Supreme Court. The Court’s finding generally followed, and built on, those previous cases.
This case summary was written by Jonathan Thomas, LLM student at Queen Mary University, London.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| UK - House of Lords, 15 February 2006, Januzi v Secretary of State for the Home Department & Ors [2006] UKHL 5 |
| UK - House of Lords, 6 July 2000, Horvath v. Secretary of State for the Home Department [2000] UKHL 37 |
| UK - Immigration Appeal Tribunal, 19 February 2002, Tanveer Ahmed [2002] UKIAT 00439 |
| UK - House of Lords, R v Secretary of State for the Home Department Ex p Bugdaycay [1987] 1 All ER 940, [1987] AC 514, [1987] 2 WLR 606 |
| UK - R (L) v Secretary of State for the Home Department [2003] I WLR 1230 |
| United Kingdom - Razgar, R (on the Application of) v. Secretary of State for the Home Department [2004] UKHL 27 |
Other sources:
Non-Suspensive Appeals Certification under section 94 of the NIA Act 2001 (version 1.6, May 2013)
Certification of Protection and Human Rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims)
UK Immigration Rules
Fordham’s Judicial Review Handbook (6th ed)