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29 MAY 2013

R (on the application of MV) v Secretary of State for the Home Department [2013] EWHC 1017 (Admin); (2013) PLLR 060

Immigration - Leave to remain - Certification

The Claimants allegations as to inadequate protection in Bolivia were found to be supported by evidence. As such, the decision to certify their claims as clearly unfounded was quashed.

24 April 2013

Administrative Court

Bean J

(1)        The first and second Claimants, Bolivian nationals, arrived in the UK in April 2007. After their visitor status expired they remained in the UK unlawfully. The third Claimant was their child, born on 20 April 2011.

(2)        The Claimant's husband in Bolivia was said to be a ‘drug lord' and extremely violent towards the first and second Claimants. The first and second Claimant informed the Defendant that reporting the violence to the police would have only exacerbated the situation.

(3)        On 18 May 2011, the Defendant refused the Claimant's asylum and humanitarian protection applications, certifying them as clearly unfounded. The decision letter stated that the Claimants had not provided evidence of a systematic failure to provide protection by the Bolivian authorities. Further, there was nothing to prevent their relocating to a different part of Bolivia.

(4)        Bolivia is on the list in section 94(4) of the Immigration and Asylum Act 2002, which means that the Secretary of State should certify asylum claims unless it is clearly not unfounded. The Claimant sought an order quashing the decision to place Bolivia on this list and an order declaring that the Defendant was obliged to accept further information provided in July and August 2011 as fresh claims for asylum.

(5)        HELD: The test to be applied in certifying a case as clearly unfounded was whether, having reviewed the available material, the Defendant is ‘reasonably and conscientiously satisfied that the allegations must clearly fail' (as per R (Yogathas) v SSHD [2003] 1 AC 920).

(6)        It was stated that obvious points against the claims were the facts that the Claimants had lived in the UK for 3 years before making their application and the first Claimant had not seen her ex-husband for 10 years.

(7)        Nonetheless, the Court considered that there was evidence in support of allegations made by the Claimant as to inadequate protection being provided in Bolivia. As such, the Court determined that the Claimant's claims were not necessarily bound to fail, or that they could properly be certified as clearly unfounded by a reasonable decision-maker.

(8)        As such, the certification was quashed and the Claimants were declared to be entitled to an in-country appeal. The designation challenge was dismissed on the basis that it became academic given the quashing of the certification decision.

Decision quashed

Key Paragraphs

[19] - Test for certification.

[22] - Not bound to fail.

[22] - Certification quashed.

[26] - Designation dismissed.

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