Country Guidance on Protection Risk Does Not Preclude Article 8 “Very Significant Obstacles” Claims: Quashing of Section 94 Certification in SV [2025] CSOH 88

Country Guidance on Protection Risk Does Not Preclude Article 8 “Very Significant Obstacles” Claims: Quashing of Section 94 Certification in SV [2025] CSOH 88

Introduction

This commentary examines the Outer House decision in Petition of SV for Judicial Review, [2025] CSOH 88 (Lord Lake), delivered on 26 September 2025. The case concerns an Indian national who, having entered the United Kingdom as a student and later extended his leave, made a protection and human rights claim on the basis of his sexual orientation. The Secretary of State refused his claims and certified both as “clearly unfounded” under section 94 of the Nationality, Immigration and Asylum Act 2002. The petitioner sought judicial review of the certification insofar as it applied to his Article 8 ECHR claim (private life), specifically the “very significant obstacles to integration” limb.

The central issues were:

  • What is the correct test for “clearly unfounded” certification under section 94, and how does a court approach such a challenge?
  • What weight do the court and a First-tier Tribunal owe to Country Guidance (CG) decisions and Home Office Country Policy and Information Notes (CPINs)?
  • Whether, in light of existing CG on India for gay men, an Article 8 claim based on significant obstacles to reintegration could nonetheless be arguable and thus not “clearly unfounded”.

Summary of the Judgment

Lord Lake reaffirmed that the “clearly unfounded” test sets a low threshold: a claim is clearly unfounded only if it will clearly fail. In a section 94 challenge, the court answers the certification question for itself and, if it reaches a different outcome from the Secretary of State, the certification is irrational.

The court:

  • Adopted the approach that Country Guidance decisions create an authoritative presumption of fact on the identified guidance issues (following Roba and the Immigration and Asylum Chamber’s Practice Direction, November 2024), while CPINs are not binding and their weight depends on the quality of evidence and methodology.
  • Held that, even without displacing the India CG decision (MD (same-sex oriented males: risk) India CG [2014] UKUT 65 (IAC)), the Article 8 claim could not be said to be clearly unfounded. The CG recognises harassment and discrimination against gay men; while not sufficient for a protection claim or Article 3, such circumstances could, depending on the facts, amount to “very significant obstacles to integration” for Article 8 purposes.
  • Granted reduction of the section 94 certification in respect of the Article 8 claim, thereby enabling an in-country right of appeal.

Detailed Analysis

1) Precedents and Authorities Cited

  • Section 94 NIAA 2002 and “white list” countries:
    • Section 94 permits certification of human rights claims as “clearly unfounded,” and, for listed countries (s94(3)-(4)), certification is required unless the claim is not clearly unfounded. India is listed.
    • R (Husan) v SSHD [2005] EWHC 189 (Admin) observed that the practical difference introduced by s94(3) is “so jesuitical as not to have measurable legal effect,” meaning the substantive assessment mirrors s94(1).
  • The “clearly unfounded” test and the court’s role:
    • ZT (Kosovo) v SSHD [2009] UKHL 6: a claim is clearly unfounded only if there is only one rational answer—namely, that it will clearly fail. The test is low.
    • Tsiklauri v SSHD 2020 SC 495: the appellate court can “cut through” and answer the certification question itself; by analogy, the Outer House applies the same approach in judicial review of certification.
    • SP (Albania) v SSHD [2019] EWCA Civ 951: if any reasonable doubt exists that the claim may succeed, it is not clearly unfounded.
    • SN v SSHD [2014] CSIH 7: the certification threshold is even lower than the (already low) “fresh claim” threshold.
    • “SNi,” para [21]: authority cited for assessing the petitioner’s evidence at its most favourable in the certification exercise.
  • Objective assessment with subjective fear:
    • NC v SSHD [2023] EWCA Civ 1379: assessment is objective but should take account of the petitioner’s subjective fear when considering the likely reality on return.
  • Country Guidance and CPIN:
    • Roba (OLF – MB confirmed) Ethiopia CG [2022] UKUT 1 (IAC): CG creates a legal rule imposing a rebuttable presumption of fact; CPINs are not binding and their weight depends on evidential quality and filtering.
    • Immigration and Asylum Chamber Practice Direction (November 2024): a CG case is authoritative on the identified country guidance issue, subject to consistency with binding authority and the same or similar evidence. Lord Lake expressly “adopted” this approach and noted it goes even further than Roba.
  • Country Guidance on India (sexual orientation):
    • MD (same-sex oriented males: risk) India CG [2014] UKUT 65 (IAC): while recognising taboo and discrimination, it found no general real risk of prosecution or ill-treatment meeting the protection threshold. It notes harassment, discrimination, and obstacles in employment, healthcare, and housing, and describes a growing LGBT support network in major cities.
  • Article 8 framework:
    • Home Office Guidance, Private Life (v3.0), 17 October 2024: “very significant obstacle” may include real risk of significant harassment/discrimination due to sexual orientation or where rights and freedoms are severely restricted so as to affect fundamental rights and the ability to establish a private life.
    • Napier v Scottish Ministers 2005 1 SC 229: conditions not meeting Article 3 severity can still breach Article 8; this supports treating sub-Article-3 harms as potentially relevant to the “very significant obstacles” analysis.

2) Legal Reasoning

Lord Lake’s reasoning proceeds from first principles of section 94 certification. Because the court must itself determine whether the claim is “clearly unfounded,” the analysis is not confined to orthodox irrationality review but entails a determination on the arguability of the underlying claim. The test is deliberately low, reflecting that certification removes an in-country right of appeal.

On the evidential framework, the court:

  • Accepts the authoritative status of Country Guidance decisions within their defined scope, adopting the 2024 Practice Direction’s presumption. This is a significant judicial endorsement in Scotland of the scope and authority of CG.
  • Recognises that CPINs are not binding, with weight dependent on evidential quality and methodology (Roba).

Applying those frameworks, the decision makes a critical distinction: MD addresses whether the threshold is met for protection (Refugee Convention/Article 3/Qualification Directive), concluding there is no general real risk for openly gay men in India. However, the petitioner’s live claim is under Article 8, specifically whether there would be “very significant obstacles to integration” on return.

On that point, MD’s own findings—accepted without needing to “go behind” the CG—acknowledge forms of harassment, discrimination, and social hostility towards gay men (see MD para 174(c) and other passages cited). The court reasons that, even if these harms fall short of protection thresholds, they could still, depending on the facts, present very significant obstacles to reintegration. This aligns with Home Office Private Life guidance and with the principle that sub-Article 3 harms can be relevant to Article 8. The court therefore concludes that it cannot be said there is “only one rational answer” such that the Article 8 claim is bound to fail. A properly directed tribunal could accept that the petitioner faces very significant obstacles.

Two further aspects of the reasoning bear emphasis:

  • Evidence viewed at its most favourable: the court reiterates that, in the certification context, the petitioner’s material must be taken at its highest. Even if, on a full merits appeal, the claim might fail, that is not the test for certification.
  • Internal relocation and support networks: while MD suggests internal relocation to a major city is generally not unduly harsh and notes robust LGBT networks, these features do not foreclose an Article 8 obstacle assessment. The question remains whether, in the round and given the petitioner’s circumstances and fears, a tribunal could find “very significant obstacles” to integration. The court accepts that it could.

The outcome is therefore that the certification of the Article 8 claim as “clearly unfounded” is irrational and must be reduced. The court sustained the petitioner’s pleas, repelled the respondent’s, and granted reduction.

3) Impact and Significance

This decision has important practical and doctrinal implications:

  • Clear separation of protection risk and Article 8 integration analysis:
    • Country Guidance concluding no general real risk for protection purposes does not bar an arguable Article 8 claim premised on “very significant obstacles to integration.” Indeed, the factual substratum of a CG decision (e.g., recognised discrimination/harassment) may support Article 8 arguability.
  • Elevated caution for section 94 certifications of Article 8 claims:
    • Given the low threshold and obligation to view evidence favourably to the claimant, the Home Office should avoid certifying Article 8 “very significant obstacles” claims where credible evidence of discrimination, harassment, or compelled concealment exists, particularly in sexual orientation cases.
    • The decision signals that many such claims—especially from “white list” countries—may require a full appeal rather than disposal by certification.
  • Authoritative status of Country Guidance reaffirmed—but confined:
    • Scottish courts will treat CG as an authoritative presumption on defined issues per the 2024 Practice Direction, while acknowledging that its relevance may be limited when the legal question differs (protection vs Article 8 integration).
  • Role of subjective fear within an objective frame:
    • Following NC, subjective fears (e.g., fear of familial hostility or social violence) can inform the “likely reality” analysis for reintegration—important for private life claims where the harms may be cumulative and diffuse.
  • Practical litigation effects:
    • For practitioners, this case provides a pathway to resist s94 certification by tying recognised background discrimination (even below Article 3) to functional barriers to reintegration (employment, housing, healthcare access, compelled discretion) under Article 8.
    • Tribunals will likely see more in-country appeals on Article 8 “very significant obstacles” grounds in sexual orientation cases arising from India and, by analogy, from other jurisdictions with persistent social stigma short of protection thresholds.

Complex Concepts Simplified

  • “Clearly unfounded” (section 94 NIAA 2002):
    • A very low bar for the claimant: certification is only lawful if the claim would clearly fail. If there is any realistic prospect of success before a tribunal, it should not be certified.
  • “White list” countries (section 94(3)-(4)):
    • For listed countries, certification is generally mandatory unless the claim is not clearly unfounded, but in substance the same low standard applies as for non-listed countries.
  • Country Guidance (CG):
    • Reported Upper Tribunal decisions marked “CG” set authoritative findings on specified country risk issues, creating a presumption of fact unless displaced by later authority or different evidence. They are not determinative of different legal questions (such as Article 8 integration) but their factual findings can be relevant.
  • CPIN (Country Policy and Information Note):
    • Home Office reports summarising country conditions. Not binding and must be evaluated on the quality of sources and methodology.
  • Article 8 “very significant obstacles to integration”:
    • Assesses whether, considering the person’s circumstances and country conditions, they would face major practical or social barriers to resuming life on return—such as pervasive discrimination, harassment, inability to secure work or accommodation, restricted access to services, or compelled concealment of sexual orientation.
  • Internal relocation:
    • Whether moving within the country could reasonably avoid the problem. Relevant but not conclusive for Article 8; even with internal relocation, cumulative barriers may still amount to “very significant obstacles.”
  • Reduction:
    • A Scottish remedy setting aside (quashing) the unlawful decision—in this case, the certification of the Article 8 claim as clearly unfounded.

Conclusion

SV [2025] CSOH 88 makes two key contributions. First, it emphatically reaffirms the low threshold for resisting “clearly unfounded” certification and the court’s role in determining the certification question directly. Second, and most significantly for substantive immigration practice, it clarifies that Country Guidance findings negating a general protection risk do not foreclose an arguable Article 8 claim premised on “very significant obstacles to integration.” On the contrary, the factual recognition of harassment, discrimination, and social hostility towards gay men in India—expressly recorded in MD—can underpin an Article 8 obstacle case even while falling short of Article 3.

The decision also adopts, in Scotland, the 2024 Practice Direction’s expansive articulation of the authority of CG cases, while carefully confining their reach to the guidance issue and evidential context at hand. For the Home Office, the judgment counsels restraint in certifying Article 8 “private life” claims—particularly for LGBT applicants—where credible material indicates that cumulative social and practical impediments could hinder reintegration. For practitioners and tribunals, it highlights the importance of linking background evidence of discrimination to concrete, functional obstacles in everyday life. The petitioner therefore secured reduction of the certification and the opportunity to advance his Article 8 claim before the tribunal, reflecting the protective design of the section 94 framework when properly applied.

Case Details

Year: 2025
Court: Scottish Court of Session

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