Section 94 “Clearly Unfounded” Certification: Past Trafficking Alone Does Not Prevent Certification Without Specific Evidence of Future Risk or Protection Failures

Case: MB, R (On the Application Of) v Secretary of State for the Home Department
Citation: [2026] EWCA Civ 1132 (CA-2026-000370)
Court: Court of Appeal (Civil Division) (Lady Justice Whipple; Lord Justice Stuart-Smith; Lord Justice Peter Jackson)
Date: 26 August 2026

1. Introduction

This appeal concerned the lawfulness of the Secretary of State’s decision to certify an Albanian national’s protection and human rights claims as “clearly unfounded” under section 94 of the Nationality, Immigration and Asylum Act 2002. The claimant (“MB”) had been recognised under the National Referral Mechanism as a victim of modern slavery (forced criminality in a cannabis farm), but had also been convicted of drug offences and deported at the end of his sentence.

The Upper Tribunal (Immigration and Asylum Chamber) had granted judicial review, concluding in substance that the Secretary of State had not properly applied the certification test—particularly in relation to alleged risk of re-trafficking and alleged insufficiency of protection in Albania—and later made a mandatory order requiring steps to return MB to the UK.

The key issues for the Court of Appeal were:

• Certification test: whether MB’s protection claim was bound to fail (and therefore lawfully certifiable).
• Trafficking and re-trafficking: what more (if anything) is required beyond past trafficking and subjective fear to render a claim not “clearly unfounded”.
• Remedy: if certification was unlawful, whether a mandatory return order was appropriate (ultimately not reached due to outcome).

2. Summary of the Judgment

The Court of Appeal allowed the Secretary of State’s appeal. It held that:

• The Secretary of State did ask the correct question (whether the claims were “bound to fail”) and did separately address certification within the decision letter.
• The decision letter, read fairly as a whole, did not overlook MB’s trafficking history and expressly considered re-trafficking risk by reference to country guidance factors.
• On the merits, MB’s protection claim was bound to fail: there was no evidence beyond subjective assertion to show (i) a present, ongoing risk from specific individuals, (ii) any inability to obtain Horvath-standard protection, or (iii) that internal relocation would be unduly harsh under Januzi and AH (Sudan).
• Because certification was lawful, it was unnecessary to decide whether the Upper Tribunal’s mandatory return order was appropriate.

3. Analysis

3.1 Legislative and procedural significance

Section 94 certification has become procedurally more consequential since 28 June 2022: by virtue of section 94(3A) (inserted by the Nationality and Borders Act 2022), certification removes the in-country right of appeal. For nationals of listed “safe” states (including Albania), section 94(3) establishes a strong presumption of certification unless the Secretary of State is satisfied the claim is not clearly unfounded.

This context amplifies the importance of the certification test: a lawful certificate can end the appellate route, leaving judicial review as the principal means of challenge.

3.2 Precedents cited (and how they shaped the result)

(a) The certification test: “bound to fail” and “quality” of the claim

• R v Secretary of State for the Home Department ex parte Thangarasa and Yogathas [2002] 3 WLR 1276
  The Court adopted the formulation that a claim is clearly unfounded if it is “bound to fail”.
• R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230
  The alternative formulation—if there is at least one legitimate view on which the claimant may succeed, the claim is not clearly unfounded—underpins the same idea: certification is only justified where failure is inevitable.
• FR (Albania) [2016] EWCA Civ 605 and ZT (Kosovo) [2009] UKHL 6
  These authorities emphasise the decision-maker’s focus on the “quality” of the claim: detail, plausibility, and fit with objective evidence. The Court relied on FR (Albania) for three key propositions:
  • Taking the claim “at its highest” does not mean accepting any assertion uncritically.
  • Certification and refusal are distinct decisions, but the certification reasoning may implicitly rely on the refusal reasoning (FR (Albania) at [99]).
  • The decision-maker must ask how the First-tier Tribunal, properly directed, would assess the evidence.
  The Court of Appeal applied these points to reject the Upper Tribunal’s critique that reliance on refusal reasoning was itself unlawful.
• SP (Albania) v Secretary of State for the Home Department [2019] EWCA Civ 951
  SP (Albania) reinforced that certification is inappropriate where there is material capable of being objectively well-founded that could succeed before a tribunal. In the present case, the Court treated SP (Albania) as illustrating the kind of “missing” or unaddressed, potentially decisive evidence that can defeat certification—contrasting that with the absence of such evidence here.

(b) Substantive asylum principles engaged by the certification assessment

• Horvath v Secretary of State for the Home Department [2001] 1 AC 489
  Horvath provides the benchmark for “sufficiency of protection”: not a guarantee eliminating all risk, but a practical standard requiring functioning criminal law and reasonable willingness of authorities to detect, prosecute and punish. The Court held MB’s case lacked any evidential basis to show a likely failure to meet that standard in his circumstances.
• Januzi v Secretary of State for the Home Department [2006] UKHL 5 and AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49
  These authorities frame internal relocation as a fact-sensitive inquiry: is it reasonable, or would it be unduly harsh, given the individual’s characteristics (age, health, skills, family ties, etc.) and country conditions. The Court treated MB’s profile (adult male, education, language, knowledge of society, family contact, work history) as strongly supporting relocation reasonableness and undermining any arguable contrary conclusion.

(c) Trafficking, re-trafficking, and Albania-specific material

• TD and AD (Trafficked women) CG [2016] UKUT 00092
  Though about women, TD and AD was accepted as relevant “with suitable adjustments” for male victims. Crucially, it states:
  • There is generally Horvath-standard protection, but not in every case.
  • Re-trafficking is a reality, but individual risk turns on personal circumstances.
  The Court used this to reinforce that past trafficking is not determinative; the claimant must still show features indicating an arguable risk on return that cannot be addressed by protection or relocation.
• R (TDT) v Secretary of State for the Home Department [2018] EWCA Civ 1395
  TDT highlighted trafficking as a “process” and the risk of continuing influence and re-trafficking, especially immediately after escape. The Court distinguished MB’s situation: he had been away from traffickers for a prolonged period (including custody), and there was no evidence of ongoing reach or attempts to pursue him.
• AD v Sweden (Application No 22283/21) (ECtHR, 7 August 2024)
  The Court treated this as significant objective material: it acknowledges corruption and criminal influence concerns in Albania while concluding that protection cannot be regarded as insufficient for the general public, nor generally insufficient for all those targeted by criminal organisations. It reinforced the need for case-specific evidence of inability or unwillingness to protect.
• LR v Secretary of State for the Home Department [2026] UKUT 00315 (IAC)
  Not applied (post-hearing), but noted as new country guidance on Albanian male trafficking victims. Its mention underscores the fast-evolving evidential landscape; however, the Court decided the case on existing authority and the record before the Secretary of State.

3.3 Legal reasoning: why the claim was “bound to fail”

The Court of Appeal’s core reasoning was evidential and evaluative, rather than doctrinally innovative: it policed the boundary between (i) a plausible, factually supported claim requiring a tribunal hearing and (ii) an inevitably unsuccessful claim properly certifiable.

The Court drew particular attention to:

• Time and severance: MB’s last contact with traffickers was in late 2023, followed by long periods in custody and then removal; no post-return difficulties were evidenced.
• Protective personal circumstances: adult male, education, employability, language/cultural familiarity, and family in Albania—matching the “protective factors” identified in TD and AD and the CPIN extract (risk depends on age, education, employability, health, support network, intent/reach of traffickers).
• Lack of objective, individualised risk indicators: no threats since departure, no evidence of influence over authorities, no concrete basis that relocation is impossible, and no features showing he would fall into “gaps” in an otherwise functioning protection system.

Against that backdrop, the Court rejected key Upper Tribunal themes (incorrect test; failure to consider trafficking; improper reliance on refusal reasons) as mischaracterisations of the decision letter. It concluded the Upper Tribunal failed to engage adequately with the objective material and did not identify any specific evidence that could realistically lead a properly directed First-tier Tribunal to allow the appeal.

3.4 Impact

The decision’s practical impact is most acute in Albanian trafficking-related claims facing section 94 certification:

• Past trafficking is not a “trump card” against certification. It is relevant, but certification may still be lawful where the claimant’s circumstances and the evidential record do not show an arguable ongoing risk or a plausible protection/relocation failure.
• Objective evidence and individualisation matter. Claimants resisting certification will likely need concrete, case-specific indicators—e.g., credible evidence of ongoing threats, pursuit, localised inability to access authorities, particular vulnerabilities affecting access to protection, or specific reasons relocation would fail.
• Decision-letter drafting point: the Court endorsed a structure where certification reasoning can legitimately incorporate refusal reasoning, provided the correct “bound to fail” lens is applied to the claim as presented.

The case also signals that judicial review courts should be careful not to convert the certification exercise into a merits appeal, especially where the Secretary of State has expressly addressed the relevant risk factors and there is scant individualised evidence pointing the other way.

4. Complex Concepts Simplified

• “Clearly unfounded” / “bound to fail”: certification is lawful only where, even taking the claim as presented, it would inevitably lose before an independent immigration judge properly applying the law.
• “Taking the claim at its highest”: the decision-maker considers the best plausible version of what has been put forward, but need not accept bare assertions that are unsupported, inconsistent, or contradicted by objective material.
• Sufficiency of protection (Horvath): the home state need not guarantee perfect safety; the question is whether it generally has laws and institutions that provide a practical level of protection, and whether there is cogent reason to think they would fail for this person.
• Internal relocation (Januzi; AH (Sudan)): if a person could reasonably live safely elsewhere in their own country without undue hardship, they are not entitled to international protection even if there was danger in one area.
• Re-trafficking: recognised as a real phenomenon, but risk is assessed individually (vulnerabilities, support, trafficker reach, ability to seek help), not presumed from history alone.

5. Conclusion

[2026] EWCA Civ 1132 reasserts a disciplined approach to section 94 certification in trafficking-related Albanian claims: the mere fact of past trafficking, coupled with subjective fear, does not necessarily prevent certification. To avoid a “clearly unfounded” certificate, a claimant must point to specific, credible, individualised features showing an arguable future risk that the Albanian state cannot meet to the Horvath standard and/or that safe internal relocation is not reasonably available under Januzi and AH (Sudan).