A claim is certified as clearly founded when the SSHD is of the view that on the facts and evidence before him, it is “bound to fail.”
The general power of certification derives from section 94 of the Nationality, Immigration and Nationality Act [2002] which allows protection claims to be certified. Section 94 (B) is specifically used in human rights claims whilst section 94 (3) required the SSHD to certify a claim as clearly unfounded where it is (a) bound to fail, and (b) the applicant is a national of one of the designated countries (also known as “white list countries.”)
Where the person was outside the UK when they made the claim, they must appeal from outside the UK. When the person was inside the UK when they made a claim, they may appeal from within the UK unless the claim has been certified under section 94 or 94B.
| Type of claim refused | Place from which appeal may be brought |
| Protection claims | Within UK |
| Protection claim (and certified under section 94 or 94B) | Outside UK |
| Human rights claim made while the claimant is in UK | Within UK |
| Human rights claim made while the claimant is in UK (and certified under section 94 or 94B) | Outside UK |
| Human rights claim made while the claimant is outside UK | Outside UK |
| Revocation of protection while the claimant is in UK | Within UK |
| Revocation of protection while the claimant is outside UK | Outside UK |
The effect of certification
The effect of certification is to deprive an applicant from an in-country right of appeal. However, an out-of-country right of appeal remains active as an option to pursue. The difference between the two is that whilst an in-country right of appeal allows an applicant to have his case heard before an independent immigration judge whilst in the UK, an out of country right of appeal demands that an applicant leaves the UK before submitting an appeal.
Challenging a clearly unfounded claim certificate
There are evidently problems with appealing from abroad. The court is no stranger to this and has recognised issues relating the giving of evidence via video link and the quality of legal advice.
Receiving a certificate under section 94 of the 2002 Act can be daunting however, it is not the end of the matter. The test of “bound to fail” is an objective one. An applicant who has received a certificate can submit an application for judicial review of the certificate. This gives an applicant a second opportunity to present his case. The results of a judicial review application will not depend on the view of the SSHD but that of an independent immigration judges when presented with the evidence which was before the SSHD at the time of application. Case law stands as evidence of the courts ability to uphold justice and quash wrongly issued certificates.
An applicant has 3 months from the date of decision to comply with pre-action procedures and submit an application for judicial review.
However, often upon receiving a certificate, an applicant may be issued with a “removal window.” This will specify a time after which the applicant may be removed without any further notice. Where a removal window has been issued, it will become important to act expeditiously.
Disclaimer:
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Connaught Law and authors accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Connaught Law. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Connaught Law.
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