Anonymized Summary of Opinion (Outer House, Court of Session)

Opinion delivered by Judge [Last Name]. Parties anonymized as "Petitioner" and "Respondent". All locations and personal names replaced with neutral placeholders. The summary is based exclusively on the text of the provided opinion.

Factual and Procedural Background

The Petitioner is a national of a foreign state (hereafter "The State"). In 2019 the Petitioner obtained a student visa to come to The City. While present in The City the Petitioner was later granted leave to remain and that leave was extended until 20 December 2023. On 1 November 2023 the Petitioner made a protection and human rights claim seeking to remain in The City. The basis of the claim was that the Petitioner is a homosexual man and sought asylum on protection grounds and also relied on Articles 8 and 3 of the European Convention on Human Rights (ECHR) on human rights grounds.

On 3 June 2024 the Respondent refused both the protection and human rights claims and certified both as "clearly unfounded" under section 94 of the Nationality, Immigration and Asylum Act 2002. The present judicial review action challenges that certification but only in relation to the claim made under Article 8 ECHR. The court was invited to consider whether the Article 8 claim was "clearly unfounded" for the purposes of section 94.

Legal Issues Presented

1. Whether the Respondent lawfully certified the Petitioner’s Article 8 claim as "clearly unfounded" under section 94 of the Nationality, Immigration and Asylum Act 2002.
2. How the established tests and precedents governing "clearly unfounded" certification apply to an Article 8 (private life/integration) claim based on sexual orientation where relevant Country Guidance exists.
3. What weight the court should give to Home Office Country Policy and Information Notes (CPIN) and Country Guidance (CG) decisions when assessing whether a claim is clearly unfounded.

Arguments of the Parties

Petitioner's Arguments

• The Respondent applied the wrong test by focusing on whether the Petitioner could live safely as an openly gay man, rather than on whether there would be "very significant obstacles" to reintegration taking into account the Petitioner’s subjective fear and the likely reality on return.
• The Respondent failed to consider parts of the CPIN relied upon by the Petitioner and did not properly assess how discrimination and stigma might affect the Petitioner’s private life and ability to reintegrate.
• The fact that the Petitioner might have to hide or minimise his sexual orientation in The State could itself amount to a very significant obstacle to reintegration and therefore engage Article 8.
• The standard for certifying a claim as "clearly unfounded" is low; it is sufficient that a Tribunal might accept the Article 8 claim (i.e. the Petitioner need not show he would necessarily succeed at a Tribunal, only that he is not bound to fail).

Respondent's Arguments

• The Respondent's decision was sufficiently reasoned and took all relevant factors into account, such that a properly directed First-tier Tribunal would be likely to refuse the Petitioner’s claim.
• The Petitioner’s fears are subjective and are not supported by the objective material; the Petition does not identify the specific significant obstacles he would face beyond family reaction and the possible ability of family to locate him.
• There was no basis to depart from the relevant Country Guidance decision (referred to in the opinion) which, the Respondent submitted, indicates that a person in the Petitioner’s position would not generally face treatment amounting to a real risk for protection claims and that internal relocation and available support networks in major cities mean very significant obstacles would not generally arise.
• To depart from Country Guidance the Petitioner needed to show strong grounds why he would not have access to the same support networks and why he would face very significant obstacles; no such material was provided.

Table of Precedents Cited

Court's Reasoning and Analysis

The court set out the applicable legal framework and emphasised several core principles (as summarised in the cited authorities): (i) the certification power under section 94 may remove rights of appeal, so the test for "clearly unfounded" is a low one; (ii) the assessment under s94(3) (where the claimant is entitled to reside in a state listed in s94(4)) is, for practical purposes, the same as that required under s94(1); (iii) a claim is "clearly unfounded" only where it will clearly fail — any reasonable doubt that it may succeed means it is not clearly unfounded; and (iv) the claimant's evidence must be assessed at its most favourable while the overall assessment remains objective and can take account of subjective fear.

The court addressed disputes about evidential weight. It accepted the approach from the authorities that CPINs and country background material are not per se binding and that the weight to be attached depends on the quality of the underlying material. The court also adopted the Practice Direction approach (as explained in the opinion) that a reported Country Guidance decision is authoritative on the country guidance issue identified and, unless superseded, should be treated as authoritative in subsequent appeals that depend on the same or similar evidence.

With those principles in mind, the court analysed the specific Country Guidance relied upon by the Respondent (the Country Guidance decision summarised in the opinion, here labelled Case I). The Country Guidance contains multiple findings (quoted in the opinion) including that: prosecutions under the relevant Penal Code provision are extremely rare; some persons suffer ill-treatment, extortion, harassment and discrimination but such incidents are not so prevalent as to constitute a general real risk of persecution; circumstances are improving slowly; internal relocation to a major city is generally possible for someone who can show a real risk in their home area; and there exists an LGBTI support network mainly in the large cities.

The court recognised that Case I (the Country Guidance) concluded the protection claim threshold was not met. However, the present challenge concerned an Article 8 claim (integration/private life) rather than a protection claim. The court considered paragraph 174(c) of the Country Guidance (quoted in the opinion) which lists forms of treatment that, if they occurred, might present a very significant obstacle to integration. The court observed that those matters could be material to an Article 8 assessment.

Applying the low s94 test and assessing the Petitioner’s evidence most favourably, the court concluded that it could not be said that there was no possibility that a Tribunal might accept that the Petitioner would face very significant obstacles to reintegration on return to The State. The dispute between competing views about the likely outcome at a Tribunal was not for the court to resolve in this judicial review under the s94 rubric; rather, the court's task was to determine whether the claim was bound to fail. Because a Tribunal might accept the Article 8 claim, reasonable doubt existed and the claim was not clearly unfounded.

The court therefore found for the Petitioner on the posed certification question and granted the remedies sought in the pleading identified as statement of facts 4(a).

Holding and Implications

Holding: The court held that the Petitioner’s Article 8 claim is not "clearly unfounded" for the purposes of section 94 of the Nationality, Immigration and Asylum Act 2002. The court sustained the first and second pleas-in-law advanced on behalf of the Petitioner, repelled the Respondent’s pleas in law, and granted reduction as sought in the pleading described in the opinion (statement of facts 4(a)).

Implications (direct effects on the parties): As stated in the opinion, the certification of the Article 8 claim as "clearly unfounded" could not be sustained. The immediate consequence is that the relevant relief sought by the Petitioner (reduction as set out in the petition) was granted in respect of the Article 8 claim. The court did not purport to decide the underlying merits of the Article 8 claim for all purposes; rather, it answered the narrow legal question whether the claim was bound to fail for the purpose of certification and concluded that it was not.

Broader implications: The opinion does not assert that it establishes a novel legal rule. It applies and reaffirms existing authorities about the s94 certification test (including the low threshold for "clearly unfounded", the approach to Country Guidance and CPINs, and the requirement to assess claimants' evidence favourably). The decision therefore resolves the certification issue in this particular factual context but does not purport to create a new precedent beyond the application of the cited authorities.

References Noted in the Opinion (as presented)

Authorities and guidance relied on in the court's reasoning are listed in the opinion and are summarized above in the table of precedents. The opinion also referred to Home Office guidance (Private Life - version 3.0 dated 17 October 2024) when describing the concept of "very significant obstacles" to integration; the court took that guidance into account as part of the applicable background material.

Note: This summary has been produced solely from the provided opinion. Where the opinion did not provide full citation details for a referenced authority, that limitation has been noted rather than supplemented from any external source.