How to Challenge a ‘Clearly Unfounded’ Immigration Decision

By Alexander Ferguson – Legal Associate

27 Sep 2024

In This Article

1. Introduction to Home Office Certification of Immigration Claims as Clearly Unfounded
2. Legal Framework Governing Clearly Unfounded Certificates
3. What Are Your Options if Your Claim Is Certified as Clearly Unfounded?
4. Judicial Review of Clearly Unfounded Certificates
5. Time Limit for Judicial Review
6. The Pre-Action Protocol
7. Applying for Permission and the Substantive Hearing
8. Effect of Judicial Review When Challenging Certification
9. Further Submissions Following A Refusal
10.The Consideration of Further Submissions for Clearly Unfounded Claims
11.Effect of Further Submissions for Clearly Unfounded Claims
12.Contact Our Immigration Barristers
13. Frequently Asked Questions
14. Glossary
15. Additional Resources

1. Introduction to Home Office Certification of Immigration Claims as Clearly Unfounded

In some circumstances, if your protection and/or human rights claim is refused, your claim may be certified by the Home Office as “clearly unfounded”.  In this article we examine what to do next if you are facing this situation. You will be told that you have no right of appeal and that you must now leave the United Kingdom but such a designation is not necessarily the end of your claim in the UK. This article will go through your options if you receive a decision letter from the Home Office which refuses your claim and informs you the claim has been certified as “clearly unfounded”.

2. Legal Framework Governing Clearly Unfounded Certificates

Ordinarily, if a protection or human rights claim is rejected, claimants will have a right of appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014. Further information can be found in our previous articles about what constitutes a human rights claim or a protection claim.

The Secretary of State has the power, however, to remove this right of appeal by certifying the claim as “clearly unfounded” by virtue of section 94 of the Nationality, Immigration and Asylum Act 2002.

Claimants used to be able to challenge such a designation from outside the UK, known as an “out of country appeal”. However, following the enactment of section 28 Nationality and Borders Act 2022, out of country appeals are no longer available for claims certified after 27 June 2022. This means that there is currently no right of appeal for a refusal of a claim designated as “clearly unfounded”.

In effect, the legislation further tightened the already limited avenues of challenge available in immigration matters. Despite appearances, however, it is still possible to challenge a certification of “clearly unfounded”.

3. What Are Your Options if Your Claim Is Certified as Clearly Unfounded?

There are two options when faced with a refusal of a claim certified as “clearly unfounded”:

1. Challenge the certification through Judicial Review;
2. Further Submissions/ Fresh claim.

4. Judicial Review of Clearly Unfounded Certificates

It is possible to challenge a decision of the Secretary of State such as the certification of a claim as “clearly unfounded” through a process called Judicial Review. Judicial Review is the review of a public authority’s decision by the court. It is relevant to immigration law because the Home Office is a public authority, which exercises its power through caseworkers acting on behalf of the Secretary of State. Further details can be found in our article Judicial Review in Immigration Law: The Basics.

Judicial Review asks whether the decision should be overturned (“quashed”) on procedural or legal grounds. Note that it does not ask whether the decision was the correct one on the facts available to the decision maker. It is tightly limited to asking whether the decision ought to be overturned on the basis of illegality, irrationality or unfairness. It is a complex and potentially expensive process that should not be embarked on lightly. As such expert legal advice should be sought before pursuing it.

5. Time Limit for Judicial Review

Applications for Judicial Review have strict time limits and should be submitted as soon as possible following the date of the decision. The normal time limit is a maximum of 3 months from the date of decision. It is possible to apply for permission to extend this time limit but there must be a very good reason why the 3 month limit has been missed.

6. The Pre-Action Protocol

Before commencing a Judicial Review, you should send a Pre-Action Protocol Letter to the Home Office. The Pre-Action Protocol Letter will need to set out what part(s) of the decision is being challenged and why. It will prompt the Home Office to review the decision, which is normally done within 14 days.

The Pre-Action Protocol is a feature of civil law designed to help parties avoid court and therefore reduce costs by settling, or at least narrowing, issues before formal litigation begins. Non-compliance with the Pre-Action Protocol is viewed poorly by judges and may result in costs consequences down the line. It is therefore important to seek legal advice to ensure compliance.

In the case of a particularly obvious error of law, it is possible that the Home Office could decide to reconsider the decision without further proceedings. This could happen, for example, where a decision is made on the basis of law that had changed before the submission of an application. The Home Office is not minded to concede so expert advice in drafting a Pre-Action Protocol Letter is advisable.

7. Applying for Permission and the Substantive Hearing

If the Home Office does not concede following the Pre-Action Protocol Letter, the next step is to apply to the Upper Tribunal for permission to apply for Judicial Review of the certification.

A Judge of the Upper Tribunal will then decide whether to grant permission for a Judicial Review. This is typically done without an oral hearing. If permission is refused, unless your claim has been assessed as totally without merit, you can make your case before a judge at a permission hearing. Find out more about the immigration judicial review process.

The final stage is the substantive hearing. This is not a rehearing of your case but an assessment of whether the Home Office acted unlawfully in making its decision.

8. Effect of Judicial Review When Challenging Certification

While a Judicial Review is pending it will constitute a barrier to removal in a detention and removal context. This will be addressed in a future article.

Where challenging certification, the effect of a successful Judicial Review is that the decision to certify the original certification of the application as “clearly unfounded” is quashed.

It does not, however, overturn the initial rejection of the application. Once the certification is lifted, an applicant could then appeal their refusal decision and submit further evidence as part of the appeal process. Please note that there is no guarantee of success and the Tribunal would need the consent of the Secretary of State before a ‘new matter’ could be raised. You may wish to seek legal advice as to what would constitute a new matter.

Successful Judicial Review may also reignite leave by virtue of section 3C of the Immigration Act 1971. This is a statutory mechanism by which permission to be in the UK is automatically extended pending the resolution of an application or appeal. You can find out more in our article entitled Section 3C Leave and Judicial Review – Has it Come to an End or Not?

9. Further Submissions Following A Refusal

The further submissions process allows individuals to provide further representations in support of their protection or human rights claim following a refusal. It is set out in paragraph 353 of the Immigration Rules:

353. When a human rights or protection claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim.

As addressed above, in the case of a certification of a claim as being “clearly unfounded” no appeal is possible and therefore cannot be pending. It therefore engages paragraph 353. The effect of the rule is that individuals may submit new evidence and arguments to be considered by the decision-maker.

That evidence could be in the form of:

• A medico-legal report (a report prepared by an expert assessing both the evidence within the relevant legal frameworks, for example whether scars show violence amounting to torture);
• A psychiatric report;
• A country report (assessing the conditions in a country with reference to a particular individual and their circumstances);
• New case-law which is relevant to the claim;
• Updated country guidance published by the Home Office;
• Other updated objective evidence (for example, more recent news reports).

The evidence can relate to a not matter raised in the original application and/or bolster the matters on which submissions have already been made.

It is important to note that not only fresh evidence may be submitted but also legal arguments based on the totality of the evidence. These arguments can make a significant difference by precisely addressing the relevant legal tests and explaining how they are met by reference to the evidence in a form that invites a favourable decision. If an individual has not had the benefit of expert legal advice before making their claim, such arguments may be especially valuable.

10. The Consideration of Further Submissions for Clearly Unfounded Claims

The consideration of further submissions is a two-stage process:

Stage 1

The decision-maker will consider the further submissions along with those made in the original application and decide whether to grant refugee status, humanitarian protection or permission to stay for human rights reasons or on the basis of exceptional circumstances.

If the decision-maker does not grant the application it will move on to the second stage.

Stage 2

This is an assessment of whether the new material submitted amounts to a fresh claim. The primary significance of this stage is that if the submissions are found to amount to a fresh claim that claim attracts a right of appeal.

The process is set out as follows:

The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.

The content of the submissions will have been considered if the new material relates to the same circumstances that were set out in the first application. If the material has been considered the test is not met and there is no fresh claim.

If, however, the new material discloses circumstances not already considered the decision-maker will move on to the second limb of the test. This could be the case if the circumstances in an asylum-seeker’s home country have materially changed since the time of the first application, for example, the territorial boundaries have shifted in a conflict zone. The second limb asks, considering the totality of the original and new material, whether the applicant has a realistic prospect of success.

The Home Office Guidance “Further Submissions: Version 11.0”, published on 17 July 2023, sets out what a realistic prospect of success means in this context:

The question is whether the issues raised are at least arguable and could lead an Immigration Judge to take a different view [to that of the original decision].

The bar is not especially high. The test is one of possibility rather than probability. Whether it could (not necessarily would) lead to a different decision. That is, whether it is realistically arguable. Nonetheless there are further considerations which are discussed in What is a Fresh Claim Under the Immigration Rules?

11. Effect of Further Submissions for Clearly Unfounded Claims

The further submissions will be considered and the application could be granted at that stage. If it is not granted but is considered to amount to a fresh claim, a right of appeal should be granted, in effect, circumventing the original certification of “clearly unfounded”.

The appeal process is beyond the scope of this article but you can read more about the First-Tier Tribunal Immigration Appeal.

Please note that further submissions will not revive leave. This means that the applicant will not lawfully be in the UK while their submissions are considered. However, further submissions could constitute a barrier to removal in a detention and removal context (this will be addressed in a future article).

For expert advice and assistance in relation to immigration cases involving protection or human rights claims, contact our Immigration Barristers on 0203 617 9173 or complete our enquiry form below.