In Mohammad Racheed v Secretary of State for the Home Department [2019] CSIH 8, the Inner House of the Court of Session held that a judicial review challenge to the certification of a human rights claim to remain in the UK as “clearly unfounded” can include new evidence.

Mr Racheed, who is Syrian, claimed asylum in Bulgaria in 2014. Prior to being granted refugee status, he claimed to have been detained in a camp in conditions which were contrary to Article 3 of the European Convention on Human Rights. His situation did not improve after release from the camp. Mr Racheed was left homeless, destitute and without assistance from the Bulgarian authorities. Incredibly, he returned to Syria before fleeing again and entering the UK to claim asylum.

Because Mr Racheed had obtained refugee status in Bulgaria, the UK authorities made a request under the Dublin III Regulation inviting Bulgaria to take responsibility for him. Following Bulgaria’s acceptance of this request, the petitioner sought to challenge his removal on the basis of Article 3. This challenge was “certified” by the Secretary of State as clearly unfounded — meaning that any right of appeal would have to be exercised from outside the UK. This appeal was a challenge to that certification.

The Secretary of State placed great reliance on the absence of any current prohibition of the return of asylum seekers or refugees to Bulgaria by the ECHR or by international organisations such as the UN Refugee Agency. But the court agreed with the petitioner that there was sufficient evidence to indicate that the petitioner could succeed on appeal to the First-tier Tribunal.

There are three main points to take away from its judgment. Firstly, it ought to be “obvious” that a case that has been certified warrants the “clearly unfounded” label:

There will be cases where it is clear that much can be said in favour of a claim, and that, although it has been refused, a different decision would be available to a tribunal judge, and thus a “clearly unfounded” certificate should be quashed. There will be cases where the opposite applies and it is plain that a certificate is appropriate. Indeed, if a claim is “clearly unfounded”, that should be obvious and capable of determination and explanation with a minimum of fuss and deliberation. There will be a third category falling between the two extremes. It is in respect of such cases that difficulties can arise. NA (Sudan) [2016] EWCA Civ 1060 provides an example.

[…]

The effect of a certificate is that the claimant cannot exercise his right of appeal to a tribunal judge until after his return to the country which he contends will violate his article rights. That outcome can be understood and justified if and when it is plain that such an appeal could achieve no more than a delay of the inevitable, in that it is clearly without substance and is bound to fail. Assessing whether a claim is bound to fail before an immigration judge is a materially different exercise from a determination of its merits […] To borrow Lord Justice Underhill’s phrase, if the answers are “less than clear-cut”, this in itself suggests a problem with a “clearly unfounded” certificate.

Secondly, the First-tier Tribunal is the appropriate forum for findings of fact to be made. Both parties submitted a large volume of evidence, in the form of independent, national and international reports (a number of which had not been before the Secretary of State or the Lord Ordinary at the time their decisions has been made). The Inner House was at pains to point out that it was not its duty to make findings in fact or as to the weight to be given to the evidence. This was for the First-tier Tribunal to determine and the reviewing court should not come to its own assessment of the merits, but rather assess what the First-tier Tribunal judge might do in light of the evidence.

But, thirdly, in assessing whether there is sufficient evidence for the claim to succeed before the hypothetical First-tier Tribunal judge, the court can have regard to evidence which was not before the decision maker at the time the decision was made, although it is not bound to do so. Lord Malcolm commented on the somewhat different and uncommon judicial review procedure involved in challenges to “clearly unfounded” certificates:

It is correct that, in general, the focus in judicial review proceedings should be on the decision under challenge, and the information upon which it was based. Nonetheless it is clear from the case law that in challenges against “clearly unfounded” certificates (and in “fresh claim” cases) it is commonplace for additional material to be lodged and for it to be taken into account by the court. Indeed in the present case a bench of the Inner House allowed new reports to be lodged in advance of the appeal hearing. I agree with her Ladyship that the court should not be bound to accept new information. […] Though a departure from traditional judicial review procedures, I consider that this approach can be supported and justified, not least in cases where such serious issues are at stake. That said, in my opinion it should be accompanied by a recognition that the jurisdiction of the reviewing judge remains subject to important restraints.

Furthermore, the absence of a prohibition on returns by the UN Refugee Agency is not implicit acceptance that the conditions upon return cannot amount to a human rights violation.

On a relevant side note, it appears that the Dublin III Regulation is set to be scrapped if there is no Brexit deal, with the undoubted consequence of more complexity in these types of cases.