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What to do when a Human Rights claim is certified as unfounded

View profile for Mo Chowdhury
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What can you do when a Human Rights claim is certified as unfounded?

The Secretary of State is increasingly certifying decisions under section 94 of the Nationality Immigration and Asylum Act 2002 as clearly unfounded. As a result, this means that an appeal against her decision can’t be brought whilst the applicant is in the UK.

Appealing from abroad can be very inconvenient and costly. The applicant can’t remain in the UK during the lengthy appeal period and can’t attend the oral hearing. It can also be detrimental to the appellant’s future indefinite leave to remain application on the grounds of 10 years continuous lawful residence.

An aggrieved applicant can challenge the lawfulness of a certification decision by lodging a Judicial Review claim (“JR”). The traditional grounds for JR are illegality, irrationality and procedural impropriety.

An applicant must consider the merits of the grounds and the cost consequences if the application is ultimately unsuccessful before they lodge a claim. Lodging a JR claim does not extend leave to remain of an applicant under section 3c of the 1971 Act. Overstaying leave to remain by more than 30 days may lead to a mandatory, re-entry ban of at least one year.

The Secretary of State often makes two noticeable errors when she certifies a human rights claim. She often fails to give adequate reasons for certification.

There is a distinct difference between refusing and certifying a human rights claim. The former does not automatically lead to the latter. Something more is required to show the hopelessness of the claim. Therefore, if the certification section of the decision is brief and lacks any elaboration as to why the decision is clearly unfounded, it may be arguable that the decision is unlawful.

Furthermore, the Secretary of State often fails to apply the correct test to certify an application. When considering whether to certify a claim as clearly unfounded, the question is whether the human rights claim is so unfounded that the First-tier Tribunal Judge is bound to dismiss it. The question is an objective one and does not depend on the opinion of the Secretary of State. A certification decision must demonstrate that the correct test was applied in the decision-making process.

JR is a lengthy, complex, and expensive process. When a claim is certified, the applicant should seek advice on the merits of a challenge and any other options available before deciding to instigate JR claim.

This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

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