Clearly Unfounded Certificates

Occasionally when an applicant makes a Human Rights application the Secretary of State will refuse it and state that the application is clearly unfounded. The case of Mohammad Racheed v SSHD [2019] introduced an important point of law which is 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.

The effect of a certificate of “clearly unfounded” is that a claimant cannot exercise his right to appeal to a Tribunal Judge until after he has returned to the country which he contends will violate his Article rights.

Assessing whether a claim is bound to fail before an Immigration Judge is a different exercise from the determination of its merit. The First Tier Tribunal is the appropriate forum for findings of facts to be made and in order for the decision, to be correct, the Court can have regard to evidence which was not before the Home Office at the time of the decision in order to decide whether a hypothetical First Tier Tribunal Judge may allow the appeal. In general, the focus of the Judicial Review is on the decision under challenge and the information upon which it is based. Nevertheless, sometimes in challenging the “clearly unfounded certificate” additional material can be lodged and has to be taken into account by the Court.