“Clearly unfounded” certificates: the shape of things to come?

Is the Home Office “certifying” more human rights claims lately?

Most categories of immigration application no longer attract a right of appeal in the UK, relying instead on the potentially self-serving “administrative review” process. Human rights and protection appeals can still be put before the Tribunal, but the appeal can only be brought inside the UK if it has not been certified by the Secretary of State as being “clearly unfounded”.

It used to be the case that certification was used rarely, usually in repeated or ostensibly frivolous claims.

It now seems to be appearing regularly, as a matter of course at the end of a refusal letter. The Home Office appears to take the view that a failure to meet the Immigration Rules means automatically that your application is “clearly unfounded”. Obligations to consider whether there is an arguable case outside the Rules, or to take into account children’s best interests, are brushed aside as having been “carefully considered” but not being exceptional enough.

The test for whether a claim is “clearly unfounded” is not simply that it is unlikely to succeed, or that it is weak. It must be “bound to fail” before the Tribunal, and this is an objective test.

In very many cases, the certification is clearly wrong, contrary to the law and even to the Home Office’s own guidance. A challenge to the certificate may well succeed, and allow for a Tribunal hearing with the appellant present within the UK.

The problem is that the immediate effect of certification is to make the applicant a person with no apparent right to be in the UK: vulnerable to dismissal, loss of driving licence, harassment by Capita, and ultimately detention and removal. Challenging the certificate requires an application for Judicial Review, a process by some measure more expensive and less user-friendly than the Tribunal appeals system, and putting applicants at risk of legal costs.

It’s a cynical policy that will deter people from getting access to justice. It’s also a warning of what’s to come when “remove first appeal later” is applied to all immigration claims under the Immigration Act 2016.

 

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