By Alexander Ferguson – Authorized Affiliate
In This Article
1. Introduction to Home Office Certification of Immigration Claims as Clearly Unfounded
2. Legal Framework Governing Clearly Unfounded Certificates
3. What Are Your Options if Your Claim Is Certified as Clearly Unfounded?
4. Judicial Review of Clearly Unfounded Certificates
5. Time Limit for Judicial Review
6. The Pre-Action Protocol
7. Applying for Permission and the Substantive Hearing
8. Effect of Judicial Review When Challenging Certification
9. Further Submissions Following A Refusal
10.The Consideration of Further Submissions for Clearly Unfounded Claims
11.Effect of Further Submissions for Clearly Unfounded Claims
12.Contact Our Immigration Barristers
13. Frequently Asked Questions
14. Glossary
15. Additional Resources
1. Introduction to Dwelling Workplace Certification of Immigration Claims as Clearly Unfounded
In some circumstances, in case your protection and/or human rights declare is refused, your declare could also be licensed by the Dwelling Workplace as “clearly unfounded”. On this article we study what to do subsequent if you’re dealing with this case. You may be advised that you don’t have any proper of attraction and that you need to now depart the UK however such a designation is just not essentially the top of your declare within the UK. This text will undergo your choices in case you obtain a choice letter from the Dwelling Workplace which refuses your declare and informs you the declare has been licensed as “clearly unfounded”.
2. Authorized Framework Governing Clearly Unfounded Certificates
Ordinarily, if a safety or human rights declare is rejected, claimants may have a proper of attraction underneath section 82(1) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014. Additional data may be present in our earlier articles about what constitutes a human rights claim or a protection claim.
The Secretary of State has the facility, nonetheless, to take away this proper of attraction by certifying the declare as “clearly unfounded” by advantage of section 94 of the Nationality, Immigration and Asylum Act 2002.
Claimants used to have the ability to problem such a designation from exterior the UK, referred to as an “out of country appeal”. Nevertheless, following the enactment of section 28 Nationality and Borders Act 2022, out of nation appeals are not out there for claims licensed after 27 June 2022. Which means there’s at present no proper of attraction for a refusal of a declare designated as “clearly unfounded”.
In impact, the laws additional tightened the already restricted avenues of problem out there in immigration issues. Regardless of appearances, nonetheless, it’s nonetheless potential to problem a certification of “clearly unfounded”.
3. What Are Your Choices if Your Declare Is Licensed as Clearly Unfounded?
There are two choices when confronted with a refusal of a declare licensed as “clearly unfounded”:
- Problem the certification via Judicial Review;
- Additional Submissions/ Contemporary declare.
4. Judicial Evaluate of Clearly Unfounded Certificates
It’s potential to problem a choice of the Secretary of State such because the certification of a declare as “clearly unfounded” via a course of referred to as Judicial Evaluate. Judicial Evaluate is the evaluate of a public authority’s determination by the courtroom. It’s related to immigration legislation as a result of the Dwelling Workplace is a public authority, which workouts its energy via caseworkers appearing on behalf of the Secretary of State. Additional particulars may be present in our article Judicial Review in Immigration Law: The Basics.
Judicial Evaluate asks whether or not the choice needs to be overturned (“quashed”) on procedural or authorized grounds. Word that it doesn’t ask whether or not the choice was the proper one on the details out there to the choice maker. It’s tightly restricted to asking whether or not the choice should be overturned on the premise of illegality, irrationality or unfairness. It’s a advanced and doubtlessly costly course of that shouldn’t be launched into evenly. As such skilled authorized recommendation needs to be sought earlier than pursuing it.
5. Time Restrict for Judicial Evaluate
Purposes for Judicial Evaluate have strict cut-off dates and needs to be submitted as quickly as potential following the date of the choice. The traditional time restrict is a most of three months from the date of determination. It’s potential to use for permission to increase this time restrict however there have to be an excellent cause why the three month restrict has been missed.
6. The Pre-Motion Protocol
Earlier than commencing a Judicial Evaluate, it is best to ship a Pre-Motion Protocol Letter to the Dwelling Workplace. The Pre-Motion Protocol Letter might want to set out what half(s) of the choice is being challenged and why. It should immediate the Dwelling Workplace to evaluate the choice, which is often finished inside 14 days.
The Pre-Action Protocol is a function of civil legislation designed to help events keep away from courtroom and subsequently scale back prices by settling, or not less than narrowing, points earlier than formal litigation begins. Non-compliance with the Pre-Motion Protocol is seen poorly by judges and should lead to prices penalties down the road. It’s subsequently necessary to hunt authorized recommendation to make sure compliance.
Within the case of a very apparent error of legislation, it’s potential that the Dwelling Workplace may resolve to rethink the choice with out additional proceedings. This might occur, for instance, the place a choice is made on the premise of legislation that had modified earlier than the submission of an software. The Dwelling Workplace is just not minded to concede so skilled recommendation in drafting a Pre-Motion Protocol Letter is advisable.
7. Making use of for Permission and the Substantive Listening to
If the Dwelling Workplace doesn’t concede following the Pre-Motion Protocol Letter, the following step is to use to the Higher Tribunal for permission to use for Judicial Evaluate of the certification.
A Decide of the Higher Tribunal will then resolve whether or not to grant permission for a Judicial Evaluate. That is usually finished with out an oral listening to. If permission is refused, until your declare has been assessed as completely with out benefit, you can also make your case earlier than a choose at a permission listening to. Discover out extra in regards to the immigration judicial review process.
The ultimate stage is the substantive listening to. This isn’t a rehearing of your case however an evaluation of whether or not the Dwelling Workplace acted unlawfully in making its determination.
8. Impact of Judicial Evaluate When Difficult Certification
Whereas a Judicial Evaluate is pending it should represent a barrier to elimination in a detention and elimination context. This shall be addressed in a future article.
The place difficult certification, the impact of a profitable Judicial Evaluate is that the choice to certify the unique certification of the applying as “clearly unfounded” is quashed.
It doesn’t, nonetheless, overturn the preliminary rejection of the applying. As soon as the certification is lifted, an applicant may then attraction their refusal determination and submit additional proof as a part of the attraction course of. Please notice that there isn’t any assure of success and the Tribunal would wish the consent of the Secretary of State earlier than a ‘new matter’ might be raised. Chances are you’ll want to search authorized recommendation as to what would represent a brand new matter.
Profitable Judicial Evaluate might also reignite depart by advantage of section 3C of the Immigration Act 1971. It is a statutory mechanism by which permission to be within the UK is robotically prolonged pending the decision of an software or attraction. You’ll find out extra in our article entitled Section 3C Leave and Judicial Review – Has it Come to an End or Not?
9. Additional Submissions Following A Refusal
The additional submissions course of permits people to supply additional representations in assist of their safety or human rights declare following a refusal. It’s set out in paragraph 353 of the Immigration Guidelines:
353. When a human rights or safety declare has been refused or withdrawn or handled as withdrawn underneath paragraph 333C of those Guidelines and any attraction referring to that declare is not pending, the choice maker will take into account any additional submissions and, if rejected, will then decide whether or not they quantity to a recent declare.
As addressed above, within the case of a certification of a declare as being “clearly unfounded” no attraction is feasible and subsequently can’t be pending. It subsequently engages paragraph 353. The impact of the rule is that people could submit new proof and arguments to be thought-about by the decision-maker.
That proof might be within the type of:
- A medico-legal report (a report ready by an skilled assessing each the proof throughout the related authorized frameworks, for instance whether or not scars present violence amounting to torture);
- A psychiatric report;
- A rustic report (assessing the circumstances in a rustic on the subject of a specific particular person and their circumstances);
- New case-law which is related to the declare;
- Up to date nation steering revealed by the Dwelling Workplace;
- Different up to date goal proof (for instance, newer information experiences).
The proof can relate to a not matter raised within the unique software and/or bolster the issues on which submissions have already been made.
You will need to notice that not solely recent proof could also be submitted but additionally authorized arguments primarily based on the totality of the proof. These arguments could make a major distinction by exactly addressing the related authorized assessments and explaining how they’re met by reference to the proof in a kind that invitations a beneficial determination. If a person has not had the advantage of skilled authorized recommendation earlier than making their declare, such arguments could also be particularly invaluable.
10. The Consideration of Additional Submissions for Clearly Unfounded Claims
The consideration of additional submissions is a two-stage course of:
Stage 1
The choice-maker will take into account the additional submissions together with these made within the unique software and resolve whether or not to grant refugee standing, humanitarian safety or permission to remain for human rights causes or on the premise of outstanding circumstances.
If the decision-maker doesn’t grant the applying it should transfer on to the second stage.
Stage 2
That is an evaluation of whether or not the brand new materials submitted quantities to a recent declare. The first significance of this stage is that if the submissions are discovered to quantity to a recent declare that declare attracts a proper of attraction.
The method is about out as follows:
The submissions will quantity to a recent declare if they’re considerably totally different from the fabric that has beforehand been thought-about. The submissions will solely be considerably totally different if the content material:
(i) had not already been thought-about; and
(ii) taken along with the beforehand thought-about materials, created a sensible prospect of success, however its rejection. This paragraph doesn’t apply to claims made abroad.
The content material of the submissions may have been thought-about if the brand new materials pertains to the identical circumstances that have been set out within the first software. If the fabric has been thought-about the check is just not met and there’s no recent declare.
If, nonetheless, the brand new materials discloses circumstances not already thought-about the decision-maker will transfer on to the second limb of the check. This might be the case if the circumstances in an asylum-seeker’s dwelling nation have materially modified for the reason that time of the primary software, for instance, the territorial boundaries have shifted in a battle zone. The second limb asks, contemplating the totality of the unique and new materials, whether or not the applicant has a sensible prospect of success.
The Dwelling Workplace Steering “Further Submissions: Version 11.0”, revealed on 17 July 2023, units out what a sensible prospect of success means on this context:
The query is whether or not the problems raised are not less than controversial and may lead an Immigration Decide to take a special view [to that of the original decision].
The bar is just not particularly excessive. The check is certainly one of risk fairly than likelihood. Whether or not it may (not essentially would) result in a special determination. That’s, whether or not it’s realistically controversial. Nonetheless there are additional concerns that are mentioned in What is a Fresh Claim Under the Immigration Rules?
11. Impact of Additional Submissions for Clearly Unfounded Claims
The additional submissions shall be thought-about and the applying might be granted at that stage. If it isn’t granted however is taken into account to quantity to a recent declare, a proper of attraction needs to be granted, in impact, circumventing the unique certification of “clearly unfounded”.
The attraction course of is past the scope of this text however you’ll be able to learn extra in regards to the First-Tier Tribunal Immigration Appeal.
Please notice that additional submissions is not going to revive depart. Which means the applicant is not going to lawfully be within the UK whereas their submissions are thought-about. Nevertheless, additional submissions may represent a barrier to elimination in a detention and elimination context (this shall be addressed in a future article).
For skilled recommendation and help in relation to immigration instances involving safety or human rights claims, contact our Immigration Barristers on 0203 617 9173 or full our enquiry kind under.
What does it imply when a declare is designated as “clearly unfounded”?
A declare designated as “clearly unfounded” means the UK Dwelling Workplace believes there isn’t any foundation for the declare and denies the claimant the proper to attraction the choice.
Can I attraction if my declare is labeled “clearly unfounded”?
No, claims licensed as “clearly unfounded” shouldn’t have a proper of attraction, however there are nonetheless choices to problem the choice via Judicial Evaluate or by submitting additional proof.
What’s the authorized foundation for certifying a declare as “clearly unfounded”?
The certification is predicated on part 94 of the Nationality, Immigration and Asylum Act 2002, which permits the Secretary of State to take away the proper of attraction for claims deemed “clearly unfounded.”
What are my choices after receiving a “clearly unfounded” determination from the Dwelling Workplace?
You’ll be able to both problem the choice via Judicial Evaluate or submit additional proof as a part of a recent declare.
How do I problem a “clearly unfounded” declare via Judicial Evaluate?
You’ll be able to file for Judicial Evaluate by making use of to the Higher Tribunal, arguing that the choice was illegal on account of illegality, irrationality, or unfairness.
What’s the time restrict for submitting a Judicial Evaluate?
The same old time restrict for submitting a Judicial Evaluate is three months from the date of the choice. Extensions could also be potential underneath distinctive circumstances.
What’s the Pre-Motion Protocol and why is it necessary in Judicial Evaluate?
The Pre-Motion Protocol is a required step the place you need to notify the Dwelling Workplace of your intention to problem their determination, outlining the grounds for the problem. It goals to resolve points earlier than formal litigation begins.
What occurs if the Dwelling Workplace rejects my Pre-Motion Protocol letter?
If the Dwelling Workplace doesn’t concede after your Pre-Motion Protocol letter, you’ll be able to then apply for permission to proceed with Judicial Evaluate.
What’s a recent declare, and when can I submit one?
A recent declare is a brand new submission of proof or arguments following a earlier rejection. It may be submitted if in case you have new proof that was not thought-about in your unique software.
What varieties of proof can assist a recent declare or additional submissions?
Proof can embody medical experiences, psychiatric evaluations, up to date nation experiences, new case legislation, or different goal proof related to your declare.
What’s the impact of a profitable Judicial Evaluate on my immigration case?
In case your Judicial Evaluate is profitable, it might probably quash the choice to certify your declare as “clearly unfounded,” permitting you to attraction the preliminary rejection of your declare.
Does submitting additional submissions have an effect on my authorized standing within the UK?
Additional submissions don’t revive your depart to stay; you’ll not be legally within the UK whereas they’re thought-about. Nevertheless, they could present a barrier to elimination.
Can I nonetheless submit additional submissions after my declare is licensed as “clearly unfounded”?
Sure, you’ll be able to submit additional submissions, as they assist you to current new proof and doubtlessly create a recent declare.
What are the dangers and advantages of pursuing Judicial Evaluate in a “clearly unfounded” case?
The advantage of Judicial Evaluate is the potential to overturn an unjust determination, however it may be advanced and expensive, requiring skilled authorized recommendation.
How does the “realistic prospect of success” check apply to recent claims?
A recent declare should exhibit a sensible prospect of success, which means that the brand new proof ought to current not less than an controversial case that would result in a special determination than the unique one.
