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Last Updated: 12th April 2018

The Immigration Act 2014 which came into force in April 2015 changed the rights of appeal of applicants refused a visa due to their protection claim being certified ‘clearly unfounded’ by the Home Office. While the threshold test of the grounds of an application for immigration being ‘clearly unfounded’ is high, the Home Office demonstrates its willingness to give certificates stating a claim is so, and refusing entry to applicants whose applications didn’t meet the standard of proof they require.

Guidelines on Certification of Protection and Human Rights are under Section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims) and they set out the methods the Home Office should use in order to determine whether a protection claim is founded or not. The screening of claims is done by the Home Office with the aims as stated in the guidelines to ‘protect the integrity of the immigration system and deter unfounded claims’ through preventing appeals delaying removal from the UK, reducing the number of such claims they need to process, and saving money, where ‘protection and human rights claims are clearly unfounded’.

The vagueness of this ‘clearly unfounded’ test can make applying to the Home Office on grounds of needing permit to remain in or enter the UK for reasons of protection and human rights look exceedingly complex to would-be applicants. Applications where there is little or no substance to the claim, or where the evidence looks to be falsified, should expect to be certified ‘clearly unfounded’ and rejected. Applications in the category of Protection and Human Rights claims should be very carefully constructed to ensure that the relevant evidence is presented correctly and substantially to the Home Office, to remove reason for rejection of the claim.

The removal of the right to appeal for failed claims in the Protection and Human Rights category has since April 2015 meant that people who have overstayed their visas and wish to reapply via this route would risk removal from the UK if the claim fails, and applicants from outside the UK wouldn’t be granted entry. This means that the importance of the claim being accepted initially as having sufficient evidence and not being ‘clearly unfounded’ is very high, as remedies once a claim has been certified by the Home Office as so are very limited.

Applicants could seek a remedy in the UK only through judicial review of the certification decision, or could apply again from outside the country- an option which can be very dangerous for people at risk of being subjected to violence, imprisonment, or human rights abuses on returning to the country they seek to leave.

Common reasons that the Home Office often reject and certify Protection claims include claims based on a lack of employment options, unconfirmed medical conditions, lack of evidence regarding continuing study or work in the UK, the applicant being an adult without exceptional circumstances who could relocate without very significant obstacles, there being no evidence of the child the claim is based on, there being no child-parent relationship or the child being 18 or over, the child not having residency rights in the UK, relationships (of the type of marriages and civil partnerships) which aren’t substantial or durable, or which could be relocated without any exceptional circumstances. Claims based around the existence of a child or partner need to pay particular attention to fulfilling the evidentiary requirements of the Home Office so as to avoid being certified ‘clearly unfounded’.