This week the Court of Appeal quashed the certification of an Albanian asylum claim as “clearly unfounded”. In SP (Albania) v Secretary of State for the Home Department [2019] EWCA Civ 951, the court found that the Home Office had not properly investigated the appellant’s account of being persecuted before deciding to certify the claim under section 94(2) of the Nationality, Immigration and Asylum Act 2002, contrary to its own policy on certification.

The court also gave helpful guidance on issuing “clearly unfounded” certificates, stating that the Home Office cannot certify asylum claims without first giving proper attention to all salient features of the case. Certificates under section 94(2) should only be given if, after assessing all the facts and the evidence provided, it’s clear that the claim is so clearly without substance that it is “bound to fail”, as was held in ZL & VL v SSHD [2003] EWCA Civ 25.

Albanian woman claiming to be a trafficking victim

SP had claimed asylum on account of her being a trafficked woman from Albania, though at the time no NRM referral had been made to assess the trafficking claim. At SP’s asylum interviews, she informed the Home Office that she feared her trafficker, known as “AK”, who had threatened to take her children away from her if she reported him to the police.

Trafficking is a real problem in Albania — data collected for the government’s 2018 annual report on modern slavery show that almost a fifth of all adult potential victims of trafficking are Albanian. The case of AM and BM (Trafficked women) Albania CG [2010] UKUT 80 (IAC) also recognised trafficked Albanian women as a particular social group who may be at risk of persecution on return to Albania.

Despite all this, the Home Office case was that there was no objective basis for SP’s fear of mistreatment, rejecting the claim that SP would be identified as a member of that group on return to Albania.

Certification upheld in the Upper Tribunal

In the Upper Tribunal, Judge McGeachy agreed with the Home Office that SP’s case could not succeed even when taking the claim at its highest. Judge McGeachy mistakenly held the view that, while SP was a “victim of serious crime”, she could not be a victim of trafficking under the Council of Europe definition, as her account had no cross-border element.

On that basis, Judge McGeachy held that there would be sufficient protection available for SP on return to Albania. Further, she could internally relocate, as there was no suggestion that AK was part of a larger criminal network.

During the period after the Upper Tribunal’s decision, the Home Office did eventually conclude that SP was a victim of trafficking. However it held that there was no risk of her being re-trafficked and so refused to grant her leave.

Failure to take the claim “at its highest”

The key question for the Court of Appeal was whether SP’s claim had been taken at its highest. To Beatson LJ in FR & Anor (Albania) [2016] EWCA Civ 605, taking the claim “at its highest” meant assessing “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.” Only by doing this and still finding that a claim is still bound to fail can certification be valid.

The court rightly noted that whether SP was at risk on return depended on the proper assessment of her account. Sir Ernest Ryder gave helpful guidance on the correct way to approach clearly unfounded certificates, saying at paragraph 25 that:

The correct approach when considering a claim at its highest following FR (Albania) is to consider the claim that has in fact been put forward by the appellant including all the information she has provided. If there is material provided by the appellant, including her answers during interview, which is capable of being objectively well founded and sufficient to establish a claim but which is not accepted by the Secretary of State, then an opportunity to have that evidence tested before a judge of the First-tier Tribunal should be provided i.e. certification by the Secretary of State would not be appropriate.

Sir Ernest Ryder held that the questioning of the Home Office in SP’s screening and full asylum interviews lacked “sufficient particularity” to demonstrate her claim was taken at its highest. Whether there would be sufficient protection, or the option of internal relocation available on return, were questions that had not been adequately answered by the Home Office. This failure to take the claim at its highest damaged the Home Office’s conclusions.

As has been alluded to in previous Free Movement posts, Albanian asylum claims are difficult to win, and the Home Office all too quick to certify them. Once a claim is certified, it can take many months of litigation to remove the certificate and to have the actual substance of the claim discussed again. The odds will be against your client — and so it’s good to see the senior courts taking a firm view on excessive use of such a harsh measure.