In a decision published today, Lord Mulholland issued an opinion granting the petition of Mr Sharif Kadir (‘the Petitioner’) for judicial review of a decision by the Secretary of State for the Home Department (‘the SSHD’) to certify the Petitioner’s asylum and human rights claim as clearly unfounded in terms of section 94 of the Nationality, Immigration and Asylum Act 2002.
The SSHD routinely uses her certification powers to deprive asylum and human rights claimants of an in-country right of appeal in front of a specialist immigration judge. This power can only be used in cases where the claim is clearly unfounded. Where the SSHD uses this power, the only remedy against this is judicial review.
In the present case, the Petitioner was an Iraqi Kurd who had fled Iraq in 1998 and thereafter ended up in Greece in 1999. He was ultimately granted asylum in Greece in 2012 and recognised as a refugee under the Geneva Convention. At the end of 2013 he left Greece and travelled to the UK where he claimed asylum, fearing return to Greece due to a fear of persecution on account of his race and status as a refugee, particularly at the hands of the Golden Dawn party.
The fact that the Petitioner is a recognised refugee in Greece makes this case somewhat unusual, as most asylum claimants have never previously been recognised as refugees. The SSHD argued that the Petitioner, having been recognised as a refugee in Greece, was able to return Greece which is a functioning democracy where adequate measures were in place to protect from xenophobia and racism. The SSHD took the view that the claim was clearly unfounded and there were no prospects of this case succeeding before an immigration judge.
It was submitted for the Petitioner that an immigration judge could hold that the Petitioner would be persecuted upon his return to Greece and that it could not be said that the claim was clearly unfounded when applying anxious scrutiny. In her decision, the SSHD had failed to take into account a December 2014 UNHCR report on the asylum situation in Greece. This report was available at the date of decision, and comments on, amongst other things, racism and xenophobia towards asylum seekers and refugees.
Finding in favour of the Petitioner, and highlighting the special importance to be attached to the views of the UNHCR, Lord Mulholland took the view that:
'Given the special importance to be attached to the views of the UNHCR, see the United Kingdom Supreme Court decision in EM (Eritrea) v Secretary of State for the Home Department  1 AC 1321 per Lord Kerr of Tonaghmure at paragraphs 71 – 72, it is difficult to understand why this report was not referred to in the decision letter. There is nothing in the decision letter to suggest that the report was considered by the respondent. It was available at the time the decision letter was issued, indeed it could be said that it provided contemporaneous information on the subject matter of the petitioner’s claim (Golden Dawn is referred to in section 11 of the report (see page 35) when dealing with racially motivated attacks against migrants, asylum seekers and refugees). Given its broad scope and its conclusions and recommendation, it is certainly of relevance and given the special importance which should be attached to the views of the UNHCR it should have been considered and dealt with in the decision letter. As it has not been taken into account it cannot be said that the petitioner’s claim has received anxious scrutiny.' [ At paragraph 19.]
'The respondent has certified the claim as clearly unfounded. In my view an Immigration Judge having considered the COI material set out in the decision letter together with the UNHCR report dated December 2014 and the petitioner’s accounts could legitimately take a different view to that of the respondent and find in favour of the petitioner. I am therefore of the view that the respondent erred in holding that the claim was clearly unfounded. An immigration judge could agree with her decision, but looking at the COI material and the UNHCR report a judge could legitimately take a different view and there is a real prospect of success. The petitioner should have the right to have this decided in an ‘in-country’ appeal.' [At paragraph 20.]
The full judgment can be read here.