Certification of a Human Rights or Humanitarian Protection Claim

The Home Office can certify a human rights or humanitarian protection claim as clearly unfounded. This law was introduced by legislation in 2002. 

The application of this rule was suspended in 2017 as a result of UK Supreme Court case law. The law and guidance has been updated and from 5 June 2023 the rule is back in use by the Home Office. In light of this, it is useful to review what this means for applicants. 

What does it mean?

When a refusal decision includes certification this mean the appeal can only be made while the appellant is outside of the UK. As a result, the individual can be removed from the UK before the appeal is heard. 

Being removed from the UK has obvious negative consequences. Proceeding with an appeal from the country of origin will clearly restrict the arguments that can be made and likely have a significant detrimental effect on the success of any such appeal.  

When is a case clearly unfounded?

In order to be considered “clearly unfounded” the decision maker must be satisfied the claim, cannot on any legitimate view, succeed. Caselaw has provided further clarification. It involves a claim which is so clearly without substance that it is bound to fail. 

In making this assessment, the decision maker must reflect on factors such as the factual substance of the claim; how it stands with known background data; looking at situation in the round and whether it is capable of belief; whether in whole or part it would meet requirements or the Refugee Convention or Human Rights Convention. I detail this further below. 

Human Rights considerations

A decision cannot be certified if it would result in a breach of s.6 Human Rights Act 1998. Attention must be given to whether there are human rights considerations arising, for example Right to Respect for Private and Family Life under Article 8 European Convention on Human Rights. In addition, the individual must not face a real risk of serious and irreversible harm before the appeal process is exhausted. 

Family life would only apply where there is current evidence of an ongoing relationship with a partner, child (under 18 years old) or adult dependent relative. Outwith these categories family life is unlikely to be invoked unless there are exceptional circumstances such as a particularly high level of dependency. There must be evidence family life is ongoing at the time of application

Examples of when certification can proceed as noted in the relevant guidance include:

1. Partner application but no circumstances which suggest that family life with their partner could not continue overseas and there is no evidence of any exceptional circumstances; 
2. No evidence relationship is genuine and subsisting between partners; or 
3. Parent application but no evidence of child or of genuine and subsisting parental relationship;
4. Claim based on limited job prospects in their country of origin;
5. 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;
6. 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; or
7. Claim by an adult aged 25 and the claim does not raise any circumstances which suggest there would be 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.

Designated countries

The recent Nationality and Borders Act 2022 introduced a list of designated countries which apply when considering certification under the original 2002 law. This change was brought into force due to recent caselaw from the UK Supreme Court in 2017. In that case it was found that there is a breach of human rights if the individual wished to give oral evidence in their immigration appeal hearing but were unable to do so from their country of origin. The use of certification was temporarily suspended. 

The listed countries will permit an individual to join a UK appeal remotely while resident there. Applicants from one of these listed countries must have a decision certified where the claim is clearly unfounded. Applicants from non-listed countries can still have claims certified on a case-by-case basis.  

Summary 

Now that certification is back in force we expect to see it more often as part of refusal of applications. Certification can come into play in the refusal of any human rights or humanitarian protection claim, if the claim is considered clearly unfounded by the decision maker. Certification should not be implemented if the circumstances of the claim invoke s.6 Human Rights Act. 

If you would like advice regarding an immigration application or appeal please contact a member of our very experienced Immigration Team.