FR & Anor (Albania), R (On the Application Of) v Secretary of State for the Home Department

The appellants in the two appeals before us are citizens of Albania. The Secretary of State rejected their applications for refugee status and their human rights claims, and certified both applications as “clearly unfounded” under section 94(3) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The consequence of certification is that the appellants are only permitted to appeal against the Secretary of State’s decisions once they have left the United Kingdom. The Home Office refer to such an appeal as a “non-suspensive appeal” because it does not suspend any requirement that the individual leave the United Kingdom or the power of the Secretary of State to remove him or her. The issue before the court is whether the certification of the asylum claims of these appellants is flawed on public law grounds.

One of the appeals is by KL, a man now aged 26. He arrived in the United Kingdom on 1 August 2013 hidden in a lorry and claimed asylum on 19 September 2014. The other appeal is by FR and her three dependent children. FR arrived in the United Kingdom on 18 March 2013 and claimed asylum on arrival. She is now aged 38 and her children are now aged 17, 15 and 10. In both appeals, the claims for asylum are based on what the appellants maintain is a well-founded fear of persecution if returned to Albania as a result of a blood feud. The Upper Tribunal’s current country guidance on blood feuds is in EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC). FR’s claim is also based on her fear of domestic violence by her husband and her family, her mental health, and the impact of returning her on her health and on her ability to care for her children.

In the case of KL, the Secretary of State’s decision was made on 16 October 2014. In the case of FR and her children, the original decision was made on 1 August 2014, but was reconsidered and maintained on 21 September and 24 December 2014. On 21 September, their cases were reconsidered after representations that the Secretary of State had not considered the position of the children in the light of section 55 of the Borders, Citizenship and Immigration Act 2009 (“the Borders Act 2009”). The decision on 24 December followed a request dated 15 December for FR’s claim to be reconsidered in the light of a report dated 15 November 2014 from Dr Rachel Thomas, a consultant clinical psychologist and deputy director of the Clinic of Dissociative Studies, London, which I summarise at [24] below.

Judicial review proceedings challenging the decisions to certify their claims were launched by KL on 27 October 2014, and by FR on 22 December 2014. KL’s application for permission was refused on the papers on 10 June 2015 by Upper Tribunal Judge Gleeson. Following a renewal hearing on 13 August 2015, it was refused by Upper Tribunal Judge Gill who also refused permission to appeal to this court. Permission to appeal against the refusal of permission to apply for judicial review was granted by Sales LJ in an order dated 27 November 2015. Sales LJ also stayed removal directions which had been set for KL.

In the case of FR, on 17 July 2015 Sir Stephen Silber, sitting as a judge of the Upper Tribunal, refused permission to apply for judicial review and certified the application to be totally without merit. Permission was given to FR to appeal to this court by McCloskey J, President of the Immigration and Asylum Chamber of the Upper Tribunal, on 5 August 2015.

I consider the Upper Tribunal’s country guidance on Albanian blood feuds in section II of this judgment and the decisions made refusing KL and FR’s claims for asylum and certifying them as “clearly unfounded” in section III. In sections IV and V I consider section 94(3) of the 2002 Act and the decisions on certification. The focus of the court has to be on the meaning of the phrase “clearly unfounded” in section 94(3) but it is also important to consider the Secretary of State’s guidance on certification to caseworkers, the material parts of which are set out in section VI. I summarise the decisions below in section VII.

Section VIII contains my analysis of the submissions and my conclusions. At [96] – [100] I make observations on the need when considering certifying a decision as clearly unfounded for the careful application of the proper test to the circumstances of each case and the difference between the decision on the application for refugee status and the decision, once the application has been rejected, to certify it as “clearly unfounded”. For the reasons I give at [90] to [95] I have concluded that KL’s appeal should be allowed and for the reasons I give at [109] – [117] I have concluded that FR’s appeal should be allowed. I would grant permission to both to apply for judicial review. As the parties invited the court to deal with the substantive application rather than to remit it to the Upper Tribunal, I have also considered whether the decisions certifying the claims of KL and FR and her children should be set aside. I concluded that, in the circumstances of their cases, they should be.

In EH (Blood Feuds) (Albania), the Upper Tribunal set a number of key concepts in Albanian blood feuds out at [5]. Those relevant to these appeals are:

“(v)

Gjakmarrja (‘Blood-taking’). A vendetta, or blood feud, which may have lasted for decades, or may be recent in origin. It is closely linked to collectivist notions of family, or clan solidarity and reliability. A blood debt carries a related loss of honour which can only be restored by the taking of blood from the other family. It is generally borne by the males of the nuclear family, parents, grandparents, children and grandchildren.

Typically, a feud begins with a killing or offence by an individual from Clan A, which must be revenged by a senior male figure from Clan B. When revenge has been carried out by Clan B, Clan A is required to retaliate … and so on. … Children under 15 and women are not usually required either to kill or be killed, except perhaps where a woman is the cause of the feud, or the last surviving member of the target Clan.

(ix)

Self-confinement. Also known as self-isolation, the practice of males in a target family staying indoors, sometimes for years, as a mark of respect and recognition of the feelings of the aggressor family. A self-confined person will not usually be at risk in their home, although that is not completely certain.”

The tribunal’s guidance is given at [74]. It is:

“(a)While there remain a number of active blood feuds in Albania, they are few and declining. There are a small number of deaths annually arising from those feuds and a small number of adults and children living in self-confinement for protection. Government programmes to educate self-confined children exist but very few children are involved in them.”

…

(c)

The Albanian state has taken steps to improve state protection, but in areas where Kanun law predominates (particularly in northern Albania) those steps do not yet provide sufficiency of protection from Kanun-related blood-taking if an active feud exists and affects the individual claimant. Internal relocation to an area of Albania less dependent on the Kanun may provide sufficient protection, depending on the reach, influence, and commitment to prosecution of the feud by the aggressor clan.

…

(f)

In determining whether an active blood feud exists, the fact-finding Tribunal should consider:

(i)

the history of the alleged feud, including the notoriety of the original killings, the numbers killed, and the degree of commitment by the aggressor clan toward the prosecution of the feud;

(ii)

the length of time since the last death and the relationship of the last person killed to the appellant;

(v)

the ability of members of the aggressor clan to locate the appellant if returned to another part of Albania; and

(vi)

the past and likely future attitude of the police and other authorities towards the feud and the protection of the family of the person claiming to be at risk, including any past attempts to seek prosecution of members of the aggressor clan, or to seek protection from the Albanian authorities.

(g)

In order to establish that there is an active blood feud affecting him personally, an appellant must produce satisfactory individual evidence of its existence in relation to him. In particular, the appellant must establish:

(i)

his profile as a potential target of the feud identified and which family carried out the most recent killing; and

(ii)

whether the appellant has been, or other members of his family have been, or are currently, in self-confinement within Albania.

(h)

Attestation letters from Albanian non-governmental organisations should not in general be regarded as reliable evidence of the existence of a feud.

(i)

Documents originating from the Albanian courts,police or prosecution service, if genuine, may assist in establishing the existence of a blood feud at the date of the document relied upon, subject to the test of reliability set out in A v Secretary of State for the Home Department (Pakistan) [2002] UKIAT 00439, [2002] Imm A R 318 (Tanveer Ahmed).

…

(k)

Whether the feud continues and what the attitude of the aggressor clan to its pursuit may be will remain questions of fact to be determined by the fact-finding Tribunal.”

The summary of the cases advanced by KL and FR in the next two parts of this section of my judgment is based on an agreed chronology provided by the parties after the hearing and the material in the Secretary of State’s decision letters. The decision letters (“DL”) cite the relevant paragraphs of their asylum interview records (“AIR”) and witness statements (“WS”), and I shall refer to these when summarising the claims.

KL was born on 25 July 1989. He is from Krujë, which is north of Tirana, the capital. KL’s claim is that he has a well-founded fear from the family of AB due to a family blood feud and that he fears that, were he to return to Albania, he would be killed by the B family. His asylum interview recorded in the AIR was on 8 October 2014 and his witness statement is said to be made on 9 September 2014 although the copy in the bundle is undated.

KL says AB was shot and killed by his father in 1998 because Mr B had stolen money from KL’s father’s car: WS §2, DL §11. In interview he stated that his father’s friend, CD, and another person witnessed the shooting but in his statement he said Mr D was the only witness: AIR Q. 92, WS §3, DL §11. He says that after the shooting his father left for Greece and returned six months later and also that his father spent short periods in Kosovo, Montenegro, and Turkey: AIR qq. 95-102, 107, WS §3 DL §12. KL says the B family discovered who was responsible for the killing in 2000 when told by Mr D: AIR qq. 79, 80, WS §3.

According to KL, his father was shot on 30 December 2002. He says that his father told him that because of the turmoil in Albania he slept at a bar restaurant he owned and that his bed was shot at while he was not present: WS §3. KL says that he and his family believed it was a shooting by professional killers hired by the B family, in what the police believed, but had no proof, was a revenge attack. His father’s car was stopped by a car blocking the road and another man shot the father four times in the head and three times in his body: AIR qq. 109-110, 112, 122-123, WS §§4-5, DL § 13. Despite these injuries, his father was able to get help and was taken to hospital, where he recovered. A hospital letter suggests that KL’s father was hospitalised between 30 December 2002 and 14 January 2003.

KL also states that shortly before his father was shot a man came to their house and attempted to kidnap him by stating he was a friend of his father. KL states that his mother came out of the house and started screaming and threatening to call the police: WS §7, DL §14.

KL states that his father was arrested in 2005 in connection with the murder of Mr B. He says Mr D was extradited from the United States and testified against his father, who was convicted on 15 May 2006 and sentenced to 25 years in prison. A Court of Appeal judgment dated 15 November 2006 suggests that KL’s father’s conviction was upheld on appeal, and a High Court judgment dated 22 October 2008 suggests that KL’s father’s sentence was reduced to one of 20 years. KL states that he believed that his father was originally given a heavier sentence because the judge was the wife of a former Democratic party politician in Albania, and that Mr B’s sisters are married to men who have connections with the same political party: DL §15. KL also states (AIR q. 58) that the B family were “very powerful politically at that time”. His father’s lawyer had approached the B family to ask for forgiveness, and was told that they would forgive his father “by law as they wanted him out to seek revenge”, that AB was an only son, and AB’s father swore that he would never rest until he killed either KL’s father or one of his sons: WS §5.

As to self-confinement, KL states that he was self-confined in Albania from the age of 16: WS §1. In the light of his date of birth, that must be from about 2005. He states that he was able to leave the house with family members to collect schoolbooks for home schooling, to attend exams, and to collect glasses, but he was unable to go to the doctor’s to enquire about a leg injury: AIR qq. 34-35, 67, 170; DL §16. He also states that people destroyed the fence and they had cows stolen from the property. In the asylum interview, he states both that they had no other problems than that, but also that he was randomly shot at near his home and that he has problems with his eyes and a leg injury: AIR qq. 127, 133-137, 167-168, WS §6, DL §§16-17. He states that he left for Italy in July 2013: WS §1. He could not relocate to Tirana because his family’s enemies live there or to Vlore because there are only 3 million citizens in Albania and the B family’s relatives would help to find him: AIR qq. 192-195.

FR was born in Koplik, in the north of Albania, on 4 May 1978. Her asylum interview recorded in the AIR was on 11 November 2014 and her witness statement is dated 14 November 2014. FR lived in Koplik until her departure from Albania. She says that in about 1996 she married SR against her family’s wishes (AIR q.13b, DL §5(a) – (b)) but that after the birth of her first child on 28 June 1998, her family accepted the marriage for the child’s sake and she was in contact with them: AIR qq.52 – 56. She says that her husband drank too much and that he abused her physically and sexually, sometimes in front of the children (WS §§5 – 7, 17, 24, 27 and Dr Thomas §14) but that she remained in the marriage because she considered she had no option and that her husband threatened to kill her if she reported his violence to the police: AIR q.59. She also says that when, after their third child was born on 28 May 2005, she told her husband that if he continued beating her up she would go to the police, he said “police might take me away but you know full well I’ll come out one day, I’ll kill you with my own two hands” and that she never reported him to the police in Albania: AIR qq.61 – 62.

FR says that in June 2011 her husband assaulted a man while drunk, badly injured him, and that this triggered a blood feud: AIR qq.84, 99, WS §12. She did not know her husband’s victim’s name, where he lived, his job or what family he has: AIR qq.89, 95 – 98. She says that threats were directed at her husband and her son by the other family, that attempts to reconcile failed, that the family “remained indoors for a while to avoid the conflict”, and her son did not attend school from September until November 2011: AIR qq.40, 91, 94, 111 – 113, WS §§13 – 14, DL §5(l) and (m).

FR says that her husband made arrangements for the family to go to Belgium and they departed, although no date is given: AIR q. 91, WS §14, DL §5(n). Dr Thomas §23 states that FR reported that the family moved to Belgium in the summer of 2011 at her husband’s instigation, and DL §5(l) refers to trying to go to Belgium in late 2011. In her interview with Dr Thomas, FR said that they made an asylum claim in Belgium in January or February 2013: Dr Thomas §23.

FR says that, whilst living in Belgium, her husband’s violence against her and the children intensified: WS §§16 – 17, Dr Thomas §24 (but cf DL §5(o), which refers to separating because of arguments and cites AIR q.43.)

FR says the asylum claim in Belgium was refused. She does not say when: AIR q.32. She says that her husband decided to return to Albania following the refusal of asylum in Belgium and she made arrangements to leave her husband: WS §§17, 20, 24, Dr Thomas §26, although note that in AIR q.13(c), FR is recorded as stating that her marriage ended in 2011. She also stated (WS §§17 and 31) that her husband “may” have returned to Albania.

I have stated that FR and her children arrived in the United Kingdom on 18 March 2013 and claimed asylum on arrival. She says that she paid an agent £300, that the agent said that, if she and the children were successful in reaching the United Kingdom, she would have to pay him £10,000, and that she told him to speak to her brother, who paid the agent: AIR qq.48 – 51. She says that when her brother found out that she had separated from her husband, he threatened her life: AIR qq.72 – 74, WS §§28 – 29, DL §5(r) – (s).

FR says that she had been treated for depression and stress in Albania and Belgium: DL, §5(d). She also says that she has been treated for depression, anxiety and insomnia in this country and received counselling: AIR q.26. At her substantive asylum interview on 16 January 2014, she is recorded by the immigration officer as being distressed.

Dr Thomas’s report, dated 20 December 2014, describes FR as severely mentally ill, at risk of suicide which risk would increase if she is returned to Albania. Dr Thomas diagnosed FR as suffering from PTSD and significant symptoms of Major Depressive Disorder. Her report describes FR’s symptoms as complex and consistent with her being a victim of prolonged domestic violence. The report identifies her return to Albania as a risk factor for both FR and for the children because (§94) FR “would undoubtedly become more psychiatrically unwell” and “her capacities to parent her three children effectively would be even more diminished than currently”.

The structure of the Secretary of State’s decision letters in both cases is broadly the same. Both letters summarise the nature of the applications and the fact that these applicants claimed a well-founded fear of persecution in Albania, a country listed in section 94(4) of the 2002 Act. They then set out the test to establish that one is a refugee, and I summarise the test at [72] below. The letters state that consideration was also given to whether the appellants qualified for a grant of humanitarian protection and the criteria for that.

The letters then set out the basis of the claim to asylum. They summarise with cross-references to the appellants’ asylum interview records and witness statements, what they said in support of their applications: see KL’s DL §§9 – 17, and 20 (the latter listing the supporting documents) and FR’s DL §5 and its 20 sub-paragraphs, which run to over two pages. They set out or summarise information relating to blood feuds in Albania in Home Office guidance from July 2014, which cited reports of the UN Special Rapporteur and other objective evidence, and summarise the country guidance in EH (Blood Feuds) (Albania)CG which I set out at [9] above.

It will be seen from the next two sections of this part of the judgment that the decision letters focus on the substantive claim for asylum and consider it in some detail. The question of certification is alluded to in the first paragraph of the letters, where it is stated that Albania is a country listed in section 94(4) of the 2002 Act.

In KL’s case, but not in FR’s case, it is also stated that the application was considered under “the NSA process”. That is a reference to the “non-suspensive appeal” process involved in certification cases, to which I referred at [1] above. It is stated that KL’s claim “has been considered at its highest; as if all the claimed historic events did in fact occur” and that “no consideration has been given to any credibility issues surrounding [the claim]” but “this must not be interpreted to mean that your claim is being believed as credible”: see KL’s DL, §25. In KL’s case, the consideration of the claim on this basis is dealt with in DL §§26 – 96. In FR’s case, it is contained in DL §§7 – 50.

Having concluded that the appellants did not qualify for asylum or humanitarian protection and refused the claims, in both cases certification of the asylum and human rights claims is then dealt with in two paragraphs that are identically worded paragraphs save for the reference to the type of claim. They state:

“In addition, your [asylum/human rights] claim is one to which section 94(3) of the [2002 Act] applies. This requires the Secretary of State to certify that your claim is clearly unfounded unless s/he is satisfied that it is not clearly unfounded. After consideration of all the evidence available, it has been decided that your claim is clearly unfounded. Therefore, it is hereby certified under section 94(2) of the [2002 Act] that your claim is clearly unfounded.”

(asylum claim: KL’s DL, §97, FR’s DL §51; human rights claim KL’s DL, §98 and FR’s DL, §53)

The decision letter states:

The letter states that KL’s claim was considered against the guidance given in the case of EH. (the considerations listed in [74(f)] set out at [9] above are italicised) It stated:

Conclusion on KL’s application for refugee status: The assessment of KL’s future fear and conclusion on his application for refugee status is dealt with at DL §§71 and 72. It is stated at DL §71 that overall KL’s claim to be a genuine refugee is considered to be unfounded, and “the Home Office has highlighted inconsistencies in your evidence which are considered to undermine your claim”, “that a sufficiency of protection and option to relocate is open to you”, and that KL has failed to demonstrate a reasonable degree of likelihood that he would “be at real risk of persecution from the [B] family” if returned to Albania.

Certification: This is dealt with at DL §97 which I have set out at [29] above. The reference to the non-suspensive appeal process is referred to at DL §25, summarised at [28] above.

The decision letter dated 21 September 2014 refers to the guidance given in EH at [74(f)],set out at [9] above. It stated (DL §8) that those who claim there is an active blood feud affecting them must establish their profile as a potential target of the feud and which family carried out the most recent killing, and whether the person or other members of his or her family have been or are currently in self-confinement within Albania.

The letter states (DL §9) that FR’s account of the incident does not meet the definition of a blood feud and she therefore did not belong to a particular social group and did not face a real risk of persecution as a result of the incident:

As to the willingness of the Albanian authorities to protect and the suffiency of protection, the letter states:

As to FR’s fear of her husband, the letter states:

FR’s mental condition: In relation to FR’s claim to be suffering from depression and stress the letter dated 24 September 2014 stated there is a functioning healthcare system in Albania. FR previously received treatment for depression and stress in Albania and there is nothing to suggest that she would be unable to access it again on return: DL §§46, 49. FR’s mental illness does not reach the extremely high threshold that would be needed to mean that removal would be a breach of her Article 3 rights: DL §49.

The response to Dr Thomas’s report is in the letter dated 24 December 2014. This states that FR’s medical notes between June 2013 and April 2014 record on eight separate occasions that she had no thoughts of self-harm. It also states that the decision letter dated 21 September 2014 considered her medical condition in the light of the available mental healthcare facilities in Albania and that the areas challenged after receipt of Dr Thomas’s report had been fully addressed.

The children: They are considered in the section of the decision letter on Article 8 of the European Convention on Human Rights (the ECHR”). It is stated that FR does not fall within the Immigration Rules and (DL §44) it was decided that her application did not raise or contain any exceptional circumstances which might warrant leave outside the Rules. DL §45 states, with regard to section 55 of the Borders Act 2009 and the case of ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] AC 166, that the children are all Albanian nationals with no entitlement to remain in the United Kingdom and that no medical conditions or welfare issues have been raised or identified. It is a general principle that children should be kept with and grow up with their family and their own cultural identity, and that the best interests of FR’s children are to be kept with her. They had attended school in Albania and it would be appropriate and in their best interests to return to Albania with her.

Internal relocation: The letter stated that in the light of the objective evidence internal relocation is, in general, a viable option in Albania (DL §§27 – 28). It also refers to the “unduly harsh” test in Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426 (which I consider at [79] – [80] below).It states that the question is whether a person can live a relatively normal life at the place of relocation judged by the standards that prevail in that country generally. If that person can, it will not be unreasonable to expect him to move there: DL §30. It is stated in relation to FR that:

Conclusion on FR’s application for refugee status: This is dealt with at DL §50. It is stated that, in the light of all the evidence available, FR has not established a well-founded fear of persecution if returned to Albania.

Certification: The certification of the asylum claim is at DL §51, that of the human rights claim is at DL§53. I have set out the wording at [29] above.

I have stated that this appeal is concerned with section 94(3) of the 2002 Act. Section 94 was amended by paragraph 38 of Schedule 9(4) to the Immigration Act 2014 with effect from 20 October 2014. It was common ground that, although the Secretary of State’s decision about KL and the first two decisions about FR and her children were made before the amendments to section 94 came into effect, the amendments make no difference to the issue in these appeals. This is because the main purpose of the Immigration Act 2014 was to change the removals and appeals system. The amendments to the provisions on the certification of claims are, as Ms Carss-Frisk QC submitted on behalf of the appellants, rationalising rather than reforming provisions. I therefore set out the two versions of section 94(1) – (4) in the Appendix to this judgment.

The current version of section 94(3) provides:

“If the Secretary of State is satisfied that a claimant is entitled to reside in a state listed in subsection (4), he shall certify the claim under subsection (1) unless satisfied that it is not clearly unfounded”.

Albania is one of the States listed in subsection (4). The previous version of the sub-section is identical from the words “is entitled”, but the opening words state “if the Secretary of State is satisfied that an asylum claimant or a human rights claimant… ”.

Section 94 replaced a similar provision in the Immigration and Asylum Act 1999. Section 72(2)(a) of the 1999 Act provided that a person whose allegations of breach of human rights or racial discrimination were certified as “manifestly unfounded” was not entitled to appeal against the decision while in the United Kingdom. Whereas the trigger under section 72 is “manifestly unfounded”, that under section 94 is “clearly unfounded”.

In general, the provisions empower but do not require the Secretary of State to certify a claim, but as seen from the terms of section 94(3), in the case of those entitled to reside in one of the States listed in subsection (4), she is required to certify the claim unless she is satisfied that it is not clearly unfounded. In R (L and another) v Secretary of State for the Home Department and the Lord Chancellor’s Department [2003] EWCA Civ. 25, [2003] 1 WLR 1230 Lord Phillips MR stated at [43] that Parliament's assumption was that in general in the listed states there will be no serious risk of persecution of persons entitled to reside in that state and that claims of applicants from any of them are likely to be clearly unfounded. I consider what he stated about the approach to be used by the Secretary of State when considering certification and by the court when considering a judicial review of certification at [52], [54] and [56] – [57] below.

The question of when a claim can be certified as “clearly unfounded” or, in the language used in the 1999 Act “manifestly unfounded”, has produced a large body of decisions, including decisions of the House of Lords and the Supreme Court. It is generally accepted that the level of scrutiny Parliament has required the Secretary of State to exercise sets “a high threshold” and the power to certify has been described as “draconian”: see ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 438 per Lord Hope at [52] and Lord Carswell at [58]. The approach expected of the Secretary of State when considering certification and that the courts must exercise when considering a challenge to certification has been described as “anxious scrutiny”: see e.g. ZT (Kosovo) per Lord Phillips at [21] and Lord Kerr at [58]. Whatever term is used, it is clear from the authorities that the nature of the decision to certify means that when the administrative decision under challenge is said to be one which may put the applicant’s life at risk the supervisory jurisdiction by judicial review is exercised in an intensive way. Laws LJ stated in R v Secretary of State for Education and Employment, ex p Begbie[2000] 1 WLR 1115 at 1131 that there is a spectrum, a “sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake”. In R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 he stated at [18] that “the intensity of review in a public law case will depend on the subject matter in hand; and so in particular any interference by the action of a public body with a fundamental right will require a substantial objective justification”. This statement and its emphasis was approved by Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at [28] with whom Lord Hutton and Lord Scott agreed.

I consider that, for the purposes of these appeals, the principles are adequately expressed by Lord Phillips in this court in R (L and another) v Secretary of State for the Home Department and the Lord Chancellor’s Department [2003] EWCA Civ. 25, [2003] 1 WLR 1230, and the speeches in the House of Lords in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 438. The important guidance given by Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 at [16] – [17] and [20], that a reviewing court must ask itself essentially the questions which would have to be asked by a tribunal considering an appeal and then listing what have become known as the five “Razgar” questions which was explicitly endorsed by three of their Lordships in ZT’s case, must also be borne in mind. In dealing with particular aspects of the submissions, I shall also refer to a number of other decisions.

Before turning to those decisions, I make two observations. The first is that I broadly accept the written submission by Ms Anderson, on behalf of the Secretary of State, perhaps made because it was common ground that the amendments to section 94 introduced by the Immigration Act 2014 were rationalisations rather than reforms, that there is limited scope for this court to give further guidance as to the approach to a decision to certify a claim under section 94(3). But, while I consider that unnecessary reformulation or elaboration of agreed tests is undesirable because of the danger of over-refinement and the impact on certainty, aspects of the decisions that have led to these appeals suggest that there is scope for guidance about the need for the careful application of the test to the circumstances of each case and the difference between the decision on the application for refugee status and the decision, once the application has been rejected, to certify it as “clearly unfounded”.

My second observation concerns Ms Anderson’s oral submission that the court should take a minimalist approach and just look at the statutory words “and apply them as they stand”. In a context in which there are differences between the formulations of the approach to certification challenges in the decisions of this and higher courts, I do not consider that it is appropriate to seek to airbrush the jurisprudence and indeed the Secretary of State’s own policy guidance out of the picture. Ms Anderson stated that the Secretary of State reserved her position as to whether some of the different formulations by appellate courts fail to express the natural meaning of the statutory test. She did not, however, address the formulations or identify which, if any, of them might be wrong and, if so, why this court is not nevertheless bound by them. Of course the words of the legislation must be the starting point. They determine the question to be addressed by the court. Where the words are clear, they are often also the finishing point. Even then they may not be: see the operation of common law presumptions and doctrines, the principle of legality articulated by Lord Steyn in R v Secretary of State for the Home Department, ex p. Pierson [1998] AC 539 at 587-88, and the interpretative obligation in section 3 of the Human Rights Act 1998. In the light of the plethora of formulations by appellate courts about certification and the approach to be taken when a decision is challenged, I do not consider that it would be safe to assume, as Ms Anderson’s submission did, that the statutory words are the finishing point in the sense that they are all a court has to consider.

R (L and another) v Secretary of State for the Home Department and the Lord Chancellor’s Department [2003] EWCA Civ. 25, [2003] 1 WLR 1230 was the first case on certification of a claim as “clearly unfounded” under the 2002 Act to reach this court. It is referred to in the Secretary of State’s guidance as “ZL and VL v SSHD”. A mother and her son challenged the Secretary of State’s decision to certify their asylum and human rights applications under the transitional provision in section 115 of the 2002 Act and to remove them to the Czech Republic, one of the States listed in the 2002 Act. Lord Phillips stated (at [44] and [45]) that, although the listed states are ones where in general there is no risk of persecution, inclusion in the list does not establish that conclusively and that it is important to give careful consideration to the facts of the individual case as well as to the import of the body of evidence that is likely to have accumulated in relation to the particular state under consideration. He stated that “[t]he fact that the state is listed … is not a substitute for this exercise”.

Lord Phillips stated (at [56]) that the test for certifying a claim as “clearly unfounded” is an objective one. It “depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had” and that “[a] claim is either clearly unfounded or it is not”. He stated (at [57]) that decision-makers will:

“i)

consider the factual substance and detail of the claim

ii)

consider how it stands with the known background data

iii)

consider whether in the round it is capable of belief

iv)

if not, consider whether some part of it is capable of belief

v)

consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention.

If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.”

He then considered the difference between the position in such a case and that where she is required to certify a claim “unless satisfied that it is not ‘clearly unfounded’”. He stated (at [58]) that:

“[T]here is no intelligible way of applying [the statutory provision] except by a similar process of inquiry and reasoning …. In order to decide whether they are satisfied that the claim is not clearly unfounded, [decision-makers] will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded.”

The Secretary of State accepted in that case that this was the correct approach. I deal with what Lord Phillips stated about the position where a person’s case turns on credibility which is set out in the Secretary of State’s guidance at [66] below, where I consider the guidance.

In ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 438 the Court of Appeal quashed the Secretary of State’s certification under section 94 of ZT’s claim for asylum but the House of Lords allowed the Secretary of State’s appeal. The relevance of that decision to the present appeals is what was stated in the speeches of their Lordships about the correct approach for a court considering a judicial review of the certification rather than the principal issue before the House. The principal issue, the relationship between certification of a claim as “clearly unfounded” under section 94 and the “fresh claim” provisions in rule 353 of the Immigration Rules about which there have been divergent views, (Footnote: ¹) is not relevant because these appeals are only concerned with section 94.

As to the approach of a court considering a judicial review of certification, it was stated that the court was not to substitute its own view as to whether the claims were “clearly unfounded” but should apply the normal principles of judicial review. These (see Lord Phillips at [21]) involve “the anxious scrutiny that is required where human rights are in issue”. Lord Phillips also stated that, while as a matter of principle judicial review is the correct approach, in a case such as ZT’s, either approach involves the same mental process. He stated (at [22]) that this was “because the test of whether a claim is 'clearly unfounded' is a black and white test”, and the answer could not, for instance, “depend upon whether the burden of proof is on the claimant or the Secretary of State” although section 94 makes express provision in relation to the burden of proof. Lord Phillips then cited paragraphs [56] to [58] of his judgment in R (L and another).

Notwithstanding Lord Phillips’ statement that the answer could not depend on the burden of proof and the importance of giving careful consideration to the facts of the individual case as well as to the import of the objective evidence about the listed State under consideration, Ms Anderson submitted that the approach to be used in a case involving a listed State differed from that for an unlisted State. She, however, did not submit that Lord Phillips’s statements erred or impermissibly read down the statutory provisions, and ultimately appeared to accept that any difference was only as to the starting point.

In ZT’s case there was no dispute of primary fact. Lord Phillips stated (at [23]) that, in such a case:

“[T]he question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational.”

Lord Neuberger agreed, but with a qualification. He stated (at [83]) that, while it is hard to think of any circumstances where a court would not quash the Secretary of State's decision that a claim is “clearly unfounded” where the court concludes that it is not, but stopped short of suggesting that there is a hard and fast rule to that effect.

Lord Hope dissented on the principal issue but his endorsement (at [54]) of Lord Bingham’s approach in Razgar’s case was agreed with by Lord Neuberger and Lord Carswell. Lord Hope stated that the key points in Lord Bingham’s opinion are:

“a reviewing court must consider how an appeal would be likely to fare before an adjudicator as the body responsible for deciding any appeal, and … must assess the judgment which would or might be made by an adjudicator on appeal. … It may become clear that the quality of the claim is such that the facts of the case admit of only one answer. But the process … is essentially one of review.”

Lord Carswell’s agreement is at [65]. Lord Neuberger stated (at [82]) that the proper approach to be adopted by the court to a challenge to a certification that a claim is “clearly unfounded” under section 94 is “the normal judicial review test, with the addition of anxious scrutiny” which he stated is consistent with the guidance given by Lord Bingham in Razgar’s case.

Ms Carss-Frisk submitted that paragraph [31] of Lord Hughes’s judgment in R (Brown) v Secretary of State for the Home Department [2015] UKSC 8, [2015] 1 WLR 1060 was an encapsulation of what had gone before. It is not necessary to set it out. It suffices to state that Lord Hughes’s statement that “certification is, if challenged, to be subjected to the most anxious scrutiny; the court substitutes its own conclusion for that of the Secretary of State” may be the result of the fact that the encapsulation was, as Ms Carss-Frisk accepted, compressed. The statement may reflect the practical result in most cases where there is no dispute as to primary facts. Since Lord Hughes stated that the rules are to be found in paragraphs of Lord Phillips’s judgment in L’s case to which I have referred and in R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, [2003] 1 AC 920, it should not, however, be seen as putting into question the essentially supervisory nature of the jurisdiction established in the earlier cases.

To conclude, the intensity of review in a certification case is at the more and possibly most intensive end of the spectrum to which I have referred at [48] above, but the jurisdiction remains a supervisory and reviewing one. It is also important not to lose sight of the fact that provisions in the 2002 Act give the Secretary of State a certain “gate-keeping” or “screening” function as to the availability of an in-country appeal by the process of certification. As I stated in R (Toufighy) v Secretary of State [2012] EWHC 3004 (Admin) at [73], while recognising the intensity of review in this context, care must be taken not inappropriately to deprive the Secretary of State of that function.

The Secretary of State has issued guidance on the certification of claims for refugee status and human rights claims under section 94. The guidance in force at the time of the decisions about the appellants was Non Suspensive Appeals (NSA) Certification under section 94 of the NIA Act 2001 (version 1.6, May 2013). The current guidance, Certification of Protection and Human Rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002(clearly unfounded claims) was introduced in April 2015. As the only difference between the two of possible relevance to these appeals concerns the approach caseworkers should take to credibility, save in respect of that, I shall refer to the current guidance.

The section in the guidance entitled “Should the claim be certified?” proceeds on the basis that certification is only considered after an asylum, humanitarian protection or human rights claim is refused. It states at page 5 that in that event caseworkers:

“must consider whether certification is appropriate and cases that are clearly unfounded should be certified unless an exception applies.”

“The legal test as to what amounts to a clearly unfounded claim is the same for claims certified on a case by case basis as for those from designated states.”

In the section entitled “What does ‘clearly unfounded’ mean?” it is stated that “[t]o be clearly unfounded a caseworker must be satisfied that the claim cannot, on any legitimate view, succeed”. It then summarises guidance obtained from the cases of Thangarasa and Yogathas and ZL & VL v SSHD (i.e. L’s case). That which comes from [14] of Thangarasa and Yogathas is:

“[A] manifestly unfounded claim is a claim which is so clearly without substance that it is bound to fail, [and]

[I]t is possible for a claim to be manifestly unfounded even if it takes more than a cursory look at the evidence to come to a view that there is nothing of substance in it.”

That which is derived from L’s case is the extract from Lord Phillips’s judgment that I set out at [17] above.

As to credibility, version 1.6 of the guidance that was in force at the time of the decisions about the appellants stated:

“When considering certification under section 94, claims are assessed at their highest and are only certified when they are bound to fail, even if it is accepted that the claim is true. It is therefore rare for credibility issues to be addressed within certified decisions.”

The current version states:

“Credibility should not be taken into account when considering whether to certify a claim unless the claim is so incredible that it is incapable of belief.”

It states:

“This means that where certification is being considered, credibility is only relevant if the caseworker is satisfied that no one could believe the individual’s account. For example, if there is indisputable evidence which contradicts the claim or it is based on facts already considered and found not to be credible.”

I have stated that these proceedings concern the certification of the asylum claims of these appellants. In KL’s case the judicial review claim form (T480) states in section 3 that the decision to be judicially reviewed is “the decision to certify the applicant’s asylum claim under section 94 of [2002 Act]”. In FR’s case section 3 of the claim form states the decision to be judicially reviewed is “respondent’s decision to refuse the applicant and her family member’s (sic) asylum claim in the UK”.

In KL’s case, in the reasons for her order dated 10 June 2015 refusing permission to apply for judicial review, UTJ Gill stated that, in the light of the guidance in EH, it was unarguable that “on one legitimate view, the First-tier Tribunal may conclude that there is a Kanun blood feud”. She did not, however, base her decision on that. She based her decision on the fact that KL did not produce any evidence that the B family have the ability to trace him and that they have a reach beyond their home area. She stated (at [20]):

“in this respect, the evidence before the respondent was … the applicant’s evidence that the [B] family was powerful. I agree with Mr Kohli [counsel for the Secretary of State] that merely asserting the [B] family was powerful is not enough, as this does not shed any light on the reach that the family has. It may mean that his evidence was that they were powerful in the sense of having influence within a limited geographical area. It was for the applicant to put to the respondent evidence of the reach of the [B] family.”

UTJ Gill did not accept the submission that, although KL had not expressly stated that the B family had a reach across Albania and the ability to trace him across Albania, the substance of his case was that they had such a reach. She did not accept this was something that would have to be inferred from his evidence that they were powerful. She stated (at [22]) that “to say that the family is powerful without any further explanation is consistent with their having reach over only a limited area.”

In FR’s case, in the reasons for his order dated 17 July 2015 refusing permission and certifying the application to be totally without merit, Sir Stephen Silber stated that the Secretary of State was entitled to certify FR’s case for the reasons explained in the decision letter. He referred to those in DL §§17 – 25 stating that there was sufficiency of protection available to her in her home area, in DL §§26 – 34 stating that she could relocate in Albania outside Koplik and live there safely, and to the reasons in DL §§36 – 50 for stating that her removal would not infringe her rights under Articles 3 and 8 of the European Convention on Human Rights. He also stated that there was nothing to show that the decision to certify FR’s claim was irrational or Wednesbury unreasonable, and that the Secretary of State had given full and proper consideration to all relevant issues.

In his order granting permission to appeal to this court, McCloskey J stated that he considered it arguable that the Secretary of State had applied the wrong tests and that Sir Stephen Silber had erred in law by endorsing the decision made by the Secretary of State. This was because “the threshold for a ‘clearly unfounded’ certification is an elevated one” and “the threshold for the imposition of a ‘totally without merit’ certification is an exalted one”. At the hearing, it was not suggested that the criticisms of the “totally without merit” designation added anything to the submissions on certification.

Article 1A(2) of the 1951 United Nations Convention relating to the Status of Refugees (“the Refugee Convention”) as amended by the 1967 Protocol defines a refugee as any person who:

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

“Well-founded” means that while a subjective fear of persecution is a necessary requirement, it is not sufficient. The fear must be objectively well-founded. In these appeals, the Convention reason relied on by KL and FR is “membership of a particular social group”.

I considered the approach of the courts to the “clearly unfounded” requirement in section 94(3) of the 2002 Act and the legal test for certification in section V above. There is almost common ground between the parties as to the test. It is whether an appeal would be bound to fail in the First-tier Tribunal. In the language of the Secretary of State’s guidance to caseworkers (see [66] above) the decision-maker “must be satisfied that the claim cannot, on any legitimate view, succeed”. There is also some agreement as to the way that test is to be applied although (see [58] above) Ms Anderson submitted that the approach to be used in a case involving a listed State differed from that for an unlisted state, at least as far as the starting point is concerned.

It is common ground that consideration of whether a claim is clearly unfounded will necessarily take into account the nature of what a claimant must prove in order to succeed, in this context that he or she faces a reasonable degree of likelihood or real possibility of persecution for a Convention reason, and the factors listed by Lord Phillips in L’s case set out at [53] above. There must be careful consideration of the factual substance and detail of the claim put forward by the claimant and material relied upon by him or her in support, and the import of the body of objective evidence accumulated in relation to the state in question. In the words of Lord Hope in ZT (Kosovo) [2009] UKHL 6 at [52], the focus is on the “quality” of the claim. It is necessary to consider whether, in the round, the claim or some part of it is capable of belief and, if so, whether if believed in whole or in part it is capable of coming within the Refugee Convention or, as the case may be, the scope of the ECHR. The Secretary of State must consider what approach would be taken by the First-tier Tribunal, properly directing itself as to the law and as to the facts on the evidence.

Ms Carss-Frisk submitted that the Secretary of State should take the facts of cases in which she proposes to issue a certificate at their highest, and only in a rare case will she be able to conclude that an asserted fact by a claimant or a suggested inference from an asserted fact would be so incredible that no-one could accept it: if anyone could accept it, it is not, she argued, possible to certify the claim. Ms Carss-Frisk submitted that there is little point, at least in a practical sense, in the Secretary of State doing anything other than taking the asserted facts at their highest. She relied on the Secretary of State’s guidance as to credibility in force at the time of the decisions about the appellants set out at [67] above. The correct test, however, is, as Ms Anderson observed, not whether there is any prospect of “anyone” believing an account to be true, but whether the First-tier Tribunal, properly directing itself as to the law and as to the facts on the evidence before it, would so conclude. The tribunal has to assess the evidence of a claimant in the round and against the body of relevant objective evidence.

Ms Carss-Frisk submitted that the approach as to issues of fact also applies in relation to inferences. She submitted that, where there is a range of possible inferences that the Secretary of State may be able to draw from a set of facts, some less and some more plausible, it will only be where an inference is so implausible that there is no prospect of “anyone” (or more correctly, the tribunal properly directing itself as to the law and as to the facts on the evidence) drawing it that it can be rejected.

Ms Carss-Frisk’s submissions were elegantly presented. They were formulated to reflect the version of the guidance about credibility that was in force at the time of the decisions about these appellants: “when considering certification … claims are assessed at their highest and are only certified when they are bound to fail, even if it is accepted that the claim is true”. But at times she appeared to be submitting that anything said by a claimant should be accepted as correct for the purpose of the certification exercise or because further information might emerge at the hearing of an appeal. In my judgment, that puts it far too high. It would in practice prevent the certification of any claim, however incapable of belief or inconsistent with the objective evidence the account given by the claimant is. What must be assessed is the claim which has in fact been put forward, including the answers in interview and the contents of witness statements, the detail given and any supporting evidence submitted. To do otherwise is to let a genuine subjective fear be conclusive, whether or not it is objectively well-founded and regardless of what the objective evidence about a state is.

Two important parts of the test for a well-founded claim for asylum are whether the country of nationality is either unwilling or unable to offer effective protection from persecution, and whether any persecution could be avoided by internal relocation. As to the former, a person who fears persecution from a non-state agent, as these appellants do, in the words of Lord Hope in Horvath v Secretary of State for the Home Department [2000] UKHL 37, [2001] 1 AC 489 at 499, “must show that the persecution which he fears consist[s] of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection.” Absent that, Lord Hope stated that “the risk, however severe, and the fear, however well-founded, do not entitle him to the status of a refugee”.

In the case of Albania, the question of state protection was addressed by the Upper Tribunal in EH’s case at [74(c)], set out at [9] above. It is there stated that, in areas where Kanun law predominates, particularly in northern Albania, there is not yet sufficiency of protection from Kanun-related “blood-taking” if an active feud exists.

As to internal relocation, the decision in FR’s case referred to the decision in Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426. It is well established that where the fear of being persecuted does not extend to the whole territory of a person’s country of nationality, that person will not be a refugee if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country. The difficult question is when it will be reasonable to relocate to another part of the country of nationality. In E v Secretary of State for the Home Department [2003] EWCA Civ 1032, [2004] QB 531, in a judgment of this court approved in Januzi’s case, it was stated (at [24]) that “[t]he comparison is between the conditions prevailing at the person’s place of habitual residence and those which prevail in the safe haven, having regard to the impact that they will have on a person with the characteristics of the asylum seeker”.

In Januzi’s case the appellant was an Albanian Kosovan who came from an area of Kosovo where persons of Albanian extraction were in the minority where he had been a victim of “ethnic cleansing” at Serbian hands. His claim to asylum was rejected on the ground that he could reasonably be expected to relocate to another part of Kosovo where few Serbs were present. The House of Lords rejected the argument that internal relocation is never an available option where persecution is by the authorities or that there is a presumption that if they are the feared persecutors an internal flight or relocation alternative is not available. Lord Bingham stated (at [21]) that:

“The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. The source of persecution giving rise to the claimant’s well-founded fear in his place of ordinary domicile may be agents of the state authorised or directed by the state to persecute; or they may be agents of the state whose persecution is connived at or tolerated by the state, or not restrained by the state; or the persecution may be by those who are not agents of the state, but whom the state does not or cannot control.”

After referring to a spectrum of cases depending on the sources which may overlap, Lord Bingham stated:

“The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state. The converse may also be true. All must depend on a fair assessment of the relevant facts.”

Lord Hope (at [47]) stated that, if a person can live a relatively normal life at a place of relocation judged by the standards that prevail in his country of nationality generally, and if he can reach the less hostile part without undue hardship or undue difficulty, it will not be unreasonable and thus not “unduly harsh” to expect him to move there. This echoes the statement of Baroness Hale in Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49 at [20], accepting the submission of the UNHCR in that case.

The position in Albania was addressed by the Upper Tribunal in EH’s case. The guidance at [74](c)], set out at [9] above, is that internal relocation is, in principle, open to those involved in blood feuds in Albania and “may provide sufficient protection” but this depends on the reach, influence and commitment to prosecution of the feud by the aggressor clan. At [70] it stated:

“Internal relocation will be effective to protect an appellant only where the risk does not extend beyond the appellant’s local area and he is unlikely to be traced in the rest of Albania by the aggressor clan. A crucial factor in establishing whether internal relocation is a real possibility is the geographical and political reach of the aggressor clan: where that clan has government connections, locally or more widely, the requirement to transfer civil registration to a new area … would appear to obviate the possibility of ‘disappearing’ in another part of the country, and it would be likely to drive the male members of a victim clan to self-confinement in the home area as an alternative. Whether internal relocation is reasonable in any particular appeal will always be a question of fact for the fact-finding tribunal.”

The Upper Tribunal has recently given country guidance on Albanian trafficked women in TD and AD (Trafficked women) CG [2016] UKUT 00092. The case involved two women who were acknowledged to be the victims of trafficking, and thus within a category protected by international instruments, which obliged the United Kingdom to provide them with assistance: see the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (the “Palermo Protocol”), the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), and Directive 2011/36/EU of the European Parliament.

The Upper Tribunal stated that although there is in general a Horvath-standard sufficiency of protection in Albania, in the case of victims of trafficking with mental illnesses relocation to a place where they would have to live alone after an initial period of support in “heavy cases” of up to two years a shelter, would not be reasonable. In one of the two cases considered the woman’s complex and chronic form of PTSD and depression was held (see [170]) to compromise her ability to cope and parent her son without long term support. The tribunal concluded (at [172]) that, even with support in a shelter that could be up to two years, internal flight was not a reasonable option.

KL’s case: The certification of KL’s claim is challenged on two broad grounds. The first is that it is a reasonable and plausible inference from the rejection by the B family of attempts at reconciliation and affirmation around the time KL’s father was tried that they were committed to exacting revenge and that, as KL has said, they were responsible for the violence to his father and the threats to him. The second is that it is a reasonable and plausible inference from KL’s statement that the B family are powerful, connected to politicians and to businessmen in Albania, and were able to hire professional killers to assassinate his father that he is unable to relocate safely within Albania. Ms Carss-Frisk submitted that, taking his claim at the highest as stated in the relevant guidance and DL §25, it followed that the claim did not admit of only one answer and the certification was therefore not lawful.

On behalf of the Secretary of State Ms Anderson submitted that there are three justified bases for certifying KL’s claim:- (i) on the basis of the events KL relied on there is no blood feud, (ii) the sufficiency of internal protection in Albania and, (iii) the reasonableness of internal relocation.

Ms Anderson accepted that the “no blood feud” basis for certification was weaker than the other two bases but submitted that certification on that basis was justified for two reasons. First, even if the individual events occurred as alleged by KL, a tribunal could not find that the alleged acts were perpetrated by the B family or that there was a blood feud of the type recognised in EH’s case. She argued that it was notable that, on KL’s account, his father, the focus of the stated feud, was willing and able to travel across Albania without incident. This appears to be a reference to KL’s statement (WS §3) that his father moved to Kosovo, Montenegro and Turkey for short periods to try to find employment but was unable to, and so came back, but was extremely careful and didn’t go out. Secondly, even if the acts were perpetrated by or on behalf of the B family, KL’s fear is a past fear and not a current well-founded fear. Ms Anderson also relied on the fact that UTJ Gill considered (at [18], see [68] above) that it was unarguable that on one legitimate view a tribunal may conclude that there is a blood feud, although she based her decision refusing permission on internal relocation.

Much of KL’s account lacks detail and his witness statement is no doubt, as Ms Anderson, described it, “self-serving”. But it does appear from the documents KL submitted with his application that his father killed AB in 1998, the father was shot on 30 December 2002 and hospitalised, and was later convicted of the killing. In those circumstances and in the light of the part of Albania from which KL comes and what he says was said to his father’s lawyer by a member of the B family at about the time of the trial (see [15] above), I do not consider that it can be said that this part of KL’s case admits of only one answer before a tribunal, properly directing itself as to the law and the facts. I also take into account the statement at DL §41 (see [31(iv)] above), albeit in the section of the letter on internal relocation, that KL had “no problems” for the prolonged period he remained in Albania. That entirely ignores his claims that there was an attempt to kidnap him and that there was shooting near the house, although it was earlier stated (DL §28 (see [30(ii)] above) that there was “no real evidence” of this.

I turn to the second basis for certification, Ms Anderson argued that it was open to KL to avail himself of the protection of the Albanian state, which he had not. He had not addressed this question in his interview and witness statement, which relied on speculation when the objective evidence was that the number of blood feud killings had decreased due to the creation of specialised police units and a co-ordination committee. Ms Anderson relied on KL’s account that his mother’s response to the alleged attempted kidnapping was that she would call the police as consistent with there being national protection.

The difficulty with the Secretary of State’s submissions on sufficiency of internal protection is that the guidance in EH’s case at [74](c), set out at [9] above, is that the steps taken by the authorities in the north “do not yet provide sufficiency of protection” in areas where Kanun law predominates. Ms Anderson realistically accepted that in the part of the north of Albania from where KL comes there “may be” no sufficient state protection against a blood feud. The consequence of this was that the main focus of her submissions was the third basis of the certification, internal relocation. In the light of the guidance in EH’s case and what Ms Anderson accepted about the area from which KL comes, I do not consider that it can be said that the challenge to the “sufficiency of protection” part of his case admits of only one answer before a tribunal.

I therefore turn to internal relocation. Ms Anderson submitted that it would not be unduly harsh or unreasonable to expect KL to relocate to another part of the country. His assertions of connections between the B family and unnamed members of the Democratic Party were “belated” because at his asylum interview he had only said that he could not relocate to the city of Vlore because there are only three million citizens in Albania and did not claim that these connections would enable the B family to have “nationwide reach”. She also submitted that the assertions of political connections are unspecific and unparticularised and raise more questions than they answer. They are, she argued, not capable of showing that the decisions of the Secretary of State and the Upper Tribunal that relocation was reasonably open to KL were wrong.

The question is whether on the material in KL’s asylum interview, his statements, and the documents he submitted – as opposed to any additional evidence which might be forthcoming at a tribunal hearing – no tribunal could infer that the B family had a reach extending throughout Albania, including its major cities. UTJ Gill concluded (see [68] – [69] above) that KL’s evidence that the B family were “powerful” without any further explanation did not give rise to this inference and was consistent with their having a reach over only a limited area”.

The unparticularised nature of KL’s account about the reach of the B family may well mean that ultimately a tribunal will not accept they have a reach which precludes internal relocation or that, if there is such relocation, national protection would not suffice. The question is whether, on the basis of what KL said and in the light of the objective evidence the Secretary of State was entitled and required to certify his case. The standard the Secretary of State set herself in her policy and in her decision letter (DL, §25, see [28] above) was to consider KL’s case “at its highest; as if all the claimed historic events did in fact occur”. DL, §25, reflecting the relevant policy, states that “no consideration has been given to any credibility issues surrounding [the claim]”. For the reasons below, I consider that it is not clear from the decision letter that the Secretary of State did in fact take KL’s case at its highest or that she asked the question that is required in order to certify a claim. That question is whether the claim or the relevant part of the claim admits of only one answer before a tribunal and would be bound to fail.

Bearing in mind what Lord Phillips stated in L and ZT (Kosovo) (see [52] – [54] and [58] above), and standing back and looking at this part of KL’s case in the round, notwithstanding the force of Ms Anderson’s submissions, the factors I refer to at [92] and [94] above, and the conclusion of the Upper Tribunal judge, I do not consider that it can be said that a tribunal properly directing itself could not infer from what KL said about the connections of the B family to the Democratic party and to the judge who tried his father that they had a reach throughout Albania. I have concluded that on one legitimate view the claim may succeed and therefore that it is not “clearly unfounded”, and that permission to apply for judicial review should be granted. I would therefore grant the application. At the hearing the parties invited the court, if it proposed to grant permission, to deal with the substantive application rather than to remit it to the Upper Tribunal. I have done so and have concluded that, in the circumstances of KL’s case, for the reasons I have given, the decision to certify the claims of KL should be set aside.

I finally refer to Ms Carss-Frisk’s submission that a number of expressions in the decision letter, while legitimate in the context of the determination of the application for asylum, are not consistent with the test for certification. She relied on the statements at DL §§41 and 71 that KL “had no problems for the prolonged period you remained in Albania” and that there were “inconsistencies in your evidence which are considered to undermine your claim” to which I have referred at [89] above. There is considerable force in her submission. These statements are two of the reasons the Secretary of State gave for rejecting the claim for asylum, and they may well have been reasons entitling her to do so but they do not address the test: “would the claim be bound to fail if considered by the tribunal” and they do not take the claim “at its highest”. In some circumstances, for example where such statements do not go to the heart of the case and where the document overall shows that the decision-maker has grappled in substance with the test for certification, the use of such language will not affect the legality of the certification. In the circumstances of this particular case, however, for the reasons below, I consider that they are problematic. They highlight the importance of giving separate consideration to the decision on an application for asylum, where the Secretary of State decides whether it should succeed, and the decision on certification, where she has to decide whether the application is “clearly unfounded” so that it is bound to fail and ought to be certified.

Ms Carss-Frisk stated that there is a concern by those instructing her and representatives of others that the Secretary of State sometimes appears to conflate the asylum and certification decisions by reasoning which states or is understood to assume that because the Secretary of State is not satisfied that the requirements for refugee status have been met the international protection claim is “bound to fail”. Ms Anderson’s response was that the purpose of certification is to protect overstretched court and tribunal systems, that the vast majority of appeals are not well-founded, and that usually a cautionary approach is taken. She maintained that certification is used only where there are overarching reasons that a claim must fail and that it is contrary to the principle of regularity to assume that the Secretary of State’s guidance is not being applied and the question of certification is being dealt with as following from the prior decision about the application for asylum because of the heavy workload of caseworkers. She described any such suggestion as “extraordinary and not a legitimate argument”.

It is clear that it is for a claimant to prove the grounds for challenging a public law decision and I accept that neither appellants nor the court should assume that guidance is not being applied. They are, however, entitled to scrutinise the decision letters and to consider the language in its context; that is all the evidence before the decision-maker, including the objective evidence. The decision letters in these appeals follow a pattern that is commonly used by those deciding applications of this sort. They deal with the applications for asylum in detail and at length, but deal with certification very briefly, in effect certifying for the reasons given for rejecting the asylum claim. In both KL and FR’s cases, after consideration of all evidence available and the rejection of their applications for asylum all that is said about certification is that, “in addition”, it has been decided that the claim is clearly unfounded.

There is nothing wrong in the certification decision relying implicitly, as these decisions do, on the reasons for refusing the application for asylum. But, given the style of decision letter used, as I have stated, it is important that those considering certification keep in mind and give separate consideration to the different requirements of the decision on the application for asylum and the decision on certification. A similar distinction, recently considered by this court in Wasif and Hossain v Secretary of State for the Home Department [2016] EWCA Civ 82, must be made between the refusal by a judge of an application for permission to apply for judicial review and certifying such an application as “Totally Without Merit”. Underhill LJ, giving the judgment of the court (the other two members were the Master of the Rolls and Floyd LJ), stated (at [17]) that the distinction between the two categories of cases must be made. It “is, however, a matter for the assessment of the judge in each case” and “the scope for general guidance is limited”.

In the present context, because of the structure of the decision letters, the analysis used in rejecting the application for asylum together with the other material before the Secretary of State and the court is all that is available to the court considering certification. The court will be concerned with the substantive integrity of the analysis displayed in the decision letter when giving the reasons for rejecting the application for asylum. If that is consistent with there being more than one view of the claim, or states only that the claim is “undermined” (as opposed to being one which no tribunal properly directing itself as to the law and as to the facts on the evidence before it could accept), or as simply being the Secretary of State’s view, a court exercising the intensive review that (see [48] and [62] above) is undertaken in certification cases may conclude that the Secretary of State’s own analysis has not shown that the claim is bound to fail in the tribunal. It has to be borne in mind that the presumption of regularity is an evidential presumption and, where the exercise of governmental power affects fundamental common law or Convention rights such as access to an independent court or tribunal, the decision-maker must demonstrate that account has been taken of relevant matters and the correct test has been applied: see R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514, 537-8 and the cases listed in Fordham’s Judicial Review Handbook (6^th ed.) at 42.2.2.

FR’s case: The certification of FR’s claim is challenged on several grounds. It was submitted on her behalf that her conflict with her husband and her family was amendable to characterisation as a blood feud against known objective indicators of such feuds, as described in EH. This was because she originated from the far north of Albania, her husband’s conduct in hospitalising a member of another family sufficed to cause a perception of a loss of honour capable of triggering the initiation of a vendetta, and she had identified features which were typical of a blood feud. The features identified included the intervention of missionaries/elders in an attempt to reconcile the parties, threats directed only at male members of the family, and the use of self-confinement as a strategy to avoid risk.

In my judgment, the Secretary of State was entitled to conclude that FR’s claim that she and her son were targets of an active blood feud as a result of her husband’s assault on a man is “clearly unfounded”. Two of the factors identified in EH for the determination of whether an active blood feud exists are the degree of commitment by the aggressor clan to the prosecution of the feud and its ability to locate the appellant if returned to another part of Albania. FR was unable to give any details about the man or the reach of his family, and her account does not state that there has been any directly attributable effect on her son save for the period of confinement “for a while”.

The main thrust of Ms Carss-Frisk’s submissions concerned FR’s fear from her husband and her family and that internal relocation would, in her circumstances, be unduly harsh. She submitted that the jurisprudence shows that the experience of domestic violence is amenable to characterisation as persecution: e.g. KA and others (Domestic Violence – Risk on Return)(Pakistan) CG [2010] UKUT 216. She also submitted that the acknowledgment in DL §22 (see [35(ii)] above) that domestic violence remains a problem in Albania and is “rarely punished by the authorities” is fatal to the certification of FR’s claim.

Ms Carss-Frisk submitted that FR’s consistent account of subjection to serious domestic violence between around 1996 and her flight from her husband in 2013 after their asylum claim in Belgium was rejected could be so characterised. This was, she stated, because of the expectation that FR would obtain no protection from the authorities, and her own family had consistently declined to protect her because they disapproved of her marriage and had threatened her since she left her husband in 2013. She submitted that the risk of repetition on return could not be excluded, given the Secretary of State’s obligation to take her case at its highest, and the husband’s presence in Albania could not be excluded. In fact all that FR stated in her witness statement (see [21] above) is that he “may” have returned to Albania.

Ms Carss-Frisk also submitted that the reliance by the Secretary of State on the four shelters in four cities by the Secretary of State did not justify certifying FR’s claim in view of the decision in TD and AD (Trafficked women) CG to which I referred at [84] and [85] above. She relied on Dr Thomas’s diagnosis that FR has severe mental illness, its effect on FR’s three minor children, and the absence of family support if FR is returned to Albania. She maintained that, in these circumstances, to say that her claim that internal relocation would be unduly harsh cannot on any legitimate view succeed in a tribunal makes a farce of the careful consideration that is expected of the Secretary of State when certifying a decision.

The final limb of the submissions on behalf of FR is that the part of Dr Thomas’s report concerning the impact on the children’s interests of a decline in FR’s mental health if returned was not addressed in the letter dated 24 December 2014, summarised at [39] above. Ms Carss-Frisk submitted that the Secretary of State thus erred in not considering the impact of the most recent report on FR’s mental health on the best interests of her children pursuant to her obligation under section 55 of the Borders Act 2009. She submitted that one cannot exclude the possibility of the tribunal concluding that FR cannot be expected to relocate within Albania because of the effect on her children. She relied on the unreported decision of the Upper Tribunal (Cranston J and UTJ Reeds) in R (RA (A Child)) v Secretary of State for the Home Department (30 March 2015). In that case a mother and child were removed to Nigeria after the rejection of their claim as not a “fresh claim” within paragraph 353 of the Immigration Rules. The court required the Secretary of State to return the claimants because it concluded that there had been no independent review of the merits of the child’s distinct asylum and human rights claims and the Secretary of State’s letters did not address risks to the child associated with any decline in the mother’s mental health on her return to Nigeria. I was not assisted by that case. It is a decision on its own facts in circumstances in which the best interests of the child, who had been born in the United Kingdom, had not been considered at all, either by the Secretary of State or by the local authority.

The focus of Ms Anderson’s submission that the Secretary of State was entitled to certify FR’s claim was that, notwithstanding her vulnerability and the children, internal relocation is not unduly harsh and there is no evidence in her claim that her husband or her family would be able to locate her if she relocates in another part of Albania. She also submitted that, although the submissions based on the impact on the best interests of FR’s children are “slightly mentioned” in the amended grounds, they were not clearly pleaded and the court should not consider them. I reject that submission. The summary of the particulars of claim in paragraph 42(3) of the grounds states that the Secretary of State “erred in fact and law in her assessment of the applicant’s mental health and its impact on the best interests of her children”, and see also paragraphs 96, 112 – 113 and 117.

DL §22 acknowledges (see [35(ii)] above) that domestic violence remains a problem in Albania and is “rarely punished by the authorities”. Ms Carss-Frisk’s submission that this acknowledgement is fatal to the certification of FR’s claim might be true where the perpetrator of the domestic or family violence has access to his victim. But if FR is relocated, unless her husband or family can find her, it is not in point. FR’s claim gives no grounds for considering that her former husband and her family have a reach all over Albania and so, in line with the guidance in EH’s case at [70] and [74](c)] set out at [9] and [79] above, it cannot be said that internal relocation will be ineffective to protect her because domestic violence is rarely punished.

The validity of the certification of FR’s claim therefore depends on the contention that relocation in Januzi terms is “unduly harsh” being “clearly unfounded”. The threshold is high, particularly where the persecution feared is by non-state agents. In Januzi’s case Lord Bingham stated (at [19]) that it would be strange if the accident of persecution were to entitle a person to escape, not only from that persecution, but from the deprivation to which his home country is subject” but that “it would be different if the lack of respect for human rights posed threats to his life or exposed him to the risk of inhuman or degrading treatment…”. Mr Januzi had fragile mental health which (see [30] and [52] – [53]) was assessed would deteriorate if he returned to a different part of Kosovo to the location in which he had suffered persecution. His claim had not been certified but was rejected by the tribunal which held that there were no grounds for relief under the Refugee Convention. This court dismissed Mr Januzi’s appeal against that decision but remitted his case to the tribunal for further consideration of the question whether his rights under Article 8 of the ECHR would be violated by his return to Kosovo. The House of Lords dismissed Mr Januzi’s appeal against the rejection of his claim under the Refugee Convention.

Putting aside FR’s mental health, the objective evidence is that, although the standards that prevail in Albania are lower than those in this country, she will be able to live a relatively normal life in one of the cities, aided by the support given by the NGOs at the centres, judged by the standards that prevail there. As to her mental health, I will first consider it on its own, and then Dr Thomas’s assessment of its impact on FR’s children.

It was not argued that FR’s mental health is such that Article 3 is engaged. In the light of the decisions in N v Secretary of State for the Home Department [2005] UKHL 31, [2005] 2 AC 295 and GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40, [2015] 1 WLR 3312, in which the Strasbourg and United Kingdom jurisprudence is discussed, it is clear that she does not approach the very high threshold and that any claim that she did would be ”clearly unfounded”. I do not consider that there is any justification for applying a lower test to claims for asylum based on a naturally occurring illness where there is no well-founded fear of persecution for one of the reasons in the Refugee Convention in the relevant country. As to Ms Carss-Frisk’s reliance on TD and AD (Trafficked women) CG, the situation in that case is in my view distinguishable from the situation of FR. TD and AD were acknowledged to be trafficked women. Such women have been accorded international protection by the instruments to which I have referred. Here, the issue is whether, although not otherwise qualifying as a refugee because internal relocation would not be “unduly harsh”, FR’s mental health renders it “unduly harsh”.

As to Article 8, in GS (India), this court also considered claims based on the submission that, because of ill-health, removal will breach it. Laws LJ, with the agreement of Sullivan and Underhill LJJ on this point, considered (at [86]) that where an Article 3 claim fails, an Article 8 claim “cannot prosper without some separate or additional factual element which brings the case within the Article 8 paradigm – the capacity to form and enjoy relationships – or a state of affairs having some affinity with the paradigm”. Here the additional factual element can only be FR’s relationship with and capacity to care for her children.

The position then turns on the impact of the interests of the children, and their best interests are the primary consideration on the claim. The letter dated 24 September considered section 55 and the decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 and the best interests of the children in the light of FR’s mental health. The position was that FR had previously received mental health treatment in Albania and it was in that context that the assessment as to the best interests of the children was made. I have been troubled by the fact that, while the Secretary of State in her letter dated 24 December 2014 stated that she had considered FH’s mental health, it did not address the specific point about its impact on the children in the light of Dr Thomas’s report.

I accept Ms Anderson’s submission that in principle the impact of section 55, a domestic statutory provision, should not in itself determine whether a person is a refugee or not. In the context of an asylum claim the consideration of the best interests of the children and the effect of section 55 does not in itself affect the claim to refugee status if the return is to a country where there is no well-founded fear of persecution for a Convention reason if the claimant and her children can internally relocate and there are adequate provisions for protection there. In such a case the traction to a claim would come not from the Refugee Convention but from human rights considerations in the way this court contemplated in Januzi’s case when remitting the Article 8 claim but dismissing the claim under the Refugee Convention.

It seems to me that the arguments based on the impact of FR’s mental health on the best interests of the children have greater force in the context of a human rights claim and a challenge to the certification of that claim, or to removal directions made after the rejection of such a claim. That, however, is not before the court in this case. I also note that in TD and AD (Trafficked women) CG which is discussed at [84] – [85] above, the Upper Tribunal considered the relationship of the provision of Article 8 of the Qualification Directive about the “unduly harsh” test for internal relocation and the “very significant obstacles to the applicant’s integration into the country to which he would have to go” test in paragraph 276ADE(v) of the Immigration Rules. The parties accepted (see [126]) that, in the cases before the Upper Tribunal, the outcome would be the same whichever test was applied. The tribunal stated that, while the tests are not as a matter of law to be equated, but accepted that on the facts of the cases before it, the outcome would be the same: see [153] and [173].

There is no such concession in the case of FR and her children, and all that was challenged in her application for judicial review was the refusal and certification of the asylum claim. Moreover, for the reasons I have given, where a person’s mental health is not such that removal would involve a breach of Article 3, it will not, absent the effect on FR’s children, give rise to a viable argument based on Article 8. Nevertheless, in the context of a challenge to certification, notwithstanding the undoubted force of Ms Anderson’s submissions and the fact that the position advanced by her might ultimately prevail before the tribunal, for the reasons in the next paragraph, I have concluded FR’s appeal should be allowed.

The issues that have arisen in relation to FR’s mental health and its impact on her three children, and the relationship between the decision on the asylum claim and the decision on the human rights claim mean that the quality of her claim is not such that the facts of her case admit of only one answer before a tribunal, properly directing itself as to the law and as to the facts on the evidence. Dr Thomas’s report describes FR’s symptoms as complex and consistent with her being a victim of prolonged domestic violence, and states that returning her and the children to Albania would be a risk factor for both her and the children because she “would undoubtedly become more psychiatrically unwell” and “her capacities to parent her three children effectively would be even more diminished than currently”. In Lord Phillips’s words in ZT’s case (see [58] above) I have concluded, not without hesitation, that there is a reasonable doubt as to whether the claim may succeed and therefore that it is not “clearly unfounded”, and that permission to apply for judicial review should be granted.

As in the case of KL, the parties invited the court to deal with the substantive application rather than to remit it to the Upper Tribunal and I agree that this is appropriate. Having considered the particular circumstances of FR and her children, for the reasons I have given I would set aside the decision to certify their claims.

For the reasons I have given, I would grant permission to apply for judicial review and set aside the decisions certifying the claims of KL and FR and her children.

I agree with both judgments.

I agree with the judgment of Beatson LJ. I too have hesitated about the outcome for both of these appeals and whether they should be allowed. But, given the nature of the exercise, hesitation should resolve itself in favour of the appellants.

The power to certify conferred on the Secretary of State is an important one. Many asylum claims, regrettably, are indeed clearly unfounded: to permit such claims to progress through the in-country appeals system not only has an adverse impact on limited resources it also operates to delay the hearing of the many other asylum appeals which are properly arguable. The rationale behind s. 94 is self-evident: and the importance Parliament has attached to it is illustrated by the language it has chosen, which the courts must respect and follow.

The power to certify is, in substance, in the nature of a summary decision. But it is a decision, or judgment, which has been conferred by statute on the executive. I agree with Beatson LJ that in this context the role of the court, in any consequential claim in judicial review proceedings, is one of review. The decision is not that of the court itself: and, as Lord Phillips has explained in the case of L, the assessment by the court ultimately is as to the rationality of the decision to certify made on behalf of the Secretary of State.

The style of drafting of the decision letters in these two cases is, in my experience, one commonly used on behalf of the Secretary of State. The drafting technique is to set out in detail and at considerable length the reasons for rejecting the asylum claim followed by a relatively shortly stated conclusion that the claim is assessed as clearly unfounded. That is not necessarily an objectionable technique: but of course it does necessarily then invite close attention to the reasons (and the manner of expression of those reasons) in the preceding parts of the decision letter.

I would not agree, however, as a matter of generality, with the suggestion to the effect that prior isolated references in a decision letter to (say) “inconsistencies in your evidence” or “improbabilities in your account” would necessarily be incompatible with a decision to certify as clearly unfounded. It all depends. Cherry-picking of certain expressions in the decision letter will not necessarily vitiate a decision to certify, any more than carefully chosen language in such letter will necessarily validate a decision to certify. The substance of the matter has to be appraised. Ultimately the decision letter must be read in a practical way and as a whole, in the context of the surrounding evidence.

The crucial point to emphasise for these purposes is that there is a two-stage reasoning process in play here. The style of drafting adopted in this case, although not of itself objectionable, should not be permitted to lend any encouragement to an approach: “because I have rejected the asylum claim therefore I certify as clearly unfounded”. That is not permissible: and in fairness the policy guidance recognizes as much.

An analogy can be drawn here with a decision of the court or Upper Tribunal to certify proceedings as totally without merit. Indeed the certificate of the Upper Tribunal Judge to that effect in FL was one of the bases on which permission to appeal was given by McCloskey J. The parties pragmatically did not seek to develop before us separate arguments on that point. But the two separate jurisdictions – the power of the Secretary of State to certify as clearly unfounded under s. 94 and the power of the Court or Upper Tribunal to certify proceedings as totally without merit – have this consideration in common: that is, that both powers are exercisable in a case assessed, putting it broadly, as “bound to fail”. For that reason, it is commonplace for judicial decisions to refuse permission to apply for a review of a decision to certify as clearly unfounded also to certify the proceedings – and properly so – as totally without merit.

I would draw attention in this regard to the decision of a constitution of this court in the case of Wasif v Secretary of State for the Home Department [2016] EWCA Civ 82. In that case, addressing in general terms decisions to certify as totally without merit, Underhill LJ (in giving the judgment of the Court) emphasised that the reasoning for refusing permission to apply for judicial review is an exercise distinct from the reasoning for certifying as totally without merit. That remains the case even if the latter decision is founded upon the reasons given for the former decision: see in particular at paragraph 21 of the judgment. That two-stage approach accords with the approach necessitated in the present kind of case.