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MB, R (On the Application Of) v Secretary of State for the Home Department
Factual and Procedural Background
This appeal concerned two decisions of the Upper Tribunal. The first granted judicial review of the Appellant’s certification of the Respondent’s protection and human-rights claims as clearly unfounded. The second ordered the Appellant to take steps to enable the Respondent to return to the United Kingdom. Permission to appeal was granted and execution of the order was stayed. [1][2]
The Respondent, an Albanian man, had been trafficked to the United Kingdom and forced to work on a cannabis farm. Following a police raid, he was convicted of drug offences and sentenced to 16 months’ imprisonment. He was later recognised as a victim of modern slavery and deported to Albania. [2][3][4][5][6]
The Appellant had refused and certified his protection and human-rights claims as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. The Upper Tribunal subsequently found that the certification decision was unlawful and made a mandatory order concerning his return. [6][7][8][9][10][11]
Legal Issues Presented
- Whether the Appellant applied the correct legal test when certifying the Respondent’s protection and human-rights claims as clearly unfounded. [12][13][14][15]
- Whether the claims were “bound to fail”, having regard particularly to the risk of re-trafficking, sufficiency of state protection and internal relocation in Albania. [16][17][18][19][20]
- Whether the Upper Tribunal was entitled to make a mandatory order requiring steps to enable the Respondent to return to the United Kingdom. [21][22]
Arguments of the Parties
Appellant’s Arguments
- The fact of previous trafficking was insufficient, without more, to establish an arguable insufficiency of future state protection or an inability to relocate internally. [19]
- The Respondent’s individual circumstances, including family links, education and employment history, were protective factors identified in the relevant guidance. [19]
- The risk identified in R (TDT) v Secretary of State for the Home Department concerned persons recently released from traffickers, whereas the Respondent had been separated from his traffickers for almost three years. [19]
- There was no evidence equivalent to that which had made claims arguable in other cases; the Respondent’s case rested on subjective assertions and was outweighed by objective evidence of protection and relocation possibilities. [19]
Respondent’s Arguments
- The Court should be slow to interfere with the decision of a specialist tribunal, and the Respondent’s case should be considered at its highest with anxious scrutiny. [23]
- The relevant guidance recognised continuing risks for persons who had been trafficked, while AD v Sweden acknowledged gaps and deficits in Albanian protection. [23]
- It was open to a tribunal to infer that the Respondent’s traffickers formed part of a sophisticated international criminal network capable of evading detection and locating him in Albania. [23][20]
- The evidence, taken cumulatively, could support an objectively well-founded fear of violence or re-trafficking without adequate state protection or effective internal relocation. [20]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Secretary of State for the Home Department ex parte Thangarasa and Yogathas [2002] 3 WLR 1276 | The certification test requires the claim to be “bound to fail”. | The Court adopted that formulation as common ground between the parties. [13] |
| R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230 | A claim is not clearly unfounded if it may succeed on at least one legitimate view of the facts or law. | The case was cited as a similar formulation of the certification test. [13] |
| FR (Albania) [2016] EWCA Civ 605 | The decision-maker must assess the quality and factual substance of the claim, while separately considering certification and the substantive claim. | The Court held that the Appellant had asked the correct question, separately considered certification, and was entitled to rely on reasons for refusing the substantive claim. [24][25][26][15][27][28][29] |
| ZT (Kosovo) [2009] UKHL 6 | The focus in certification is on the “quality” of the claim. | The Court found the Respondent’s claim poor because it was unsupported beyond subjective assertion and contradicted by objective evidence. [30][29] |
| SP (Albania) v Secretary of State for the Home Department [2019] EWCA Civ 951 | Considering a claim at its highest does not require accepting every assertion; objectively capable evidence may require an appeal rather than certification. | The Court distinguished the Respondent’s case, finding no comparable evidence requiring further investigation. [31][32][19] |
| Horvath v Secretary of State for the Home Department [2001] 1 AC 489 | Sufficiency of protection is a practical standard, not a guarantee eliminating all risk. | The Court applied the standard in assessing whether Albanian authorities could provide protection in the Respondent’s particular circumstances. [33][34][35][36] |
| Januzi v Secretary of State for the Home Department [2006] UKHL 5; [2006] 2 AC 426 | Internal relocation depends on whether it is reasonable or unduly harsh, assessed against all relevant circumstances. | The Court held that the Respondent had not shown that internal relocation would fail to protect him. [37][38][36] |
| Svazas v Secretary of State for the Home Department [2002] 1 WLR 1891 | Internal relocation involves a spectrum of cases requiring a fair assessment of the available material. | The case was cited within the formulation adopted in Januzi. [38] |
| AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678 | Internal relocation must focus on the particular applicant, including factors such as health, skills and family ties. | The Court considered the Respondent’s age, health, education, language, family and employment history. [39][23][40][36] |
| TD and AD (Trafficked women) CG [2016] UKUT 00092 | Although Albania generally provides protection, individual circumstances determine the risk of re-trafficking and access to protection. | The Court applied the guidance, with suitable adjustments for a male victim, and found the Respondent’s circumstances generally protective. [41][42][43][44][45][40][46] |
| R (TDT) v Secretary of State for the Home Department [2018] EWCA Civ 1395; [2018] 1 WLR 4922 | Trafficking is a continuing process, and recently released victims may face an immediate risk of re-trafficking without support and protection. | The Court distinguished that situation from the Respondent’s case, given the passage of time and absence of contact with his traffickers. [47][48][19][49] |
| AD v Sweden (Application No 22283/21) | Past ill-treatment may indicate future risk, but Albania’s general capacity to protect was not regarded as insufficient despite corruption and criminal influence. | The Court relied on the decision as part of the objective evidence supporting the availability of protection in Albania. [50][51][52][53][23][29] |
| LR v Secretary of State for the Home Department [2026] UKUT 00315 (IAC) | Recent country guidance identified factors relevant to the future risk faced by male Albanian trafficking victims. | The Court noted the decision but considered it unnecessary to say more because the relevant factors had already been addressed under existing authority. [54][55] |
Court’s Reasoning and Analysis
The Court first rejected several criticisms made by the Upper Tribunal. The Appellant had expressly asked whether the claims were “bound to fail”, had considered certification separately from the substantive claims, and was entitled to refer back to the reasons for refusing those claims. [14][15][27]
The Court also found that the Appellant had not overlooked the Respondent’s trafficking history or the possibility of re-trafficking. The decision letter expressly addressed those matters by reference to the Respondent’s education, family support, age, work experience and circumstances in Albania. [45][28]
The decisive question was whether the protection claim was bound to fail. The Court considered the Respondent’s personal circumstances, including his family connections, language, familiarity with Albania, education, work history and general health. These factors generally weighed against a finding of re-trafficking risk. [40]
The Court considered that the circumstances leading to the original trafficking were unlikely to recur because the Respondent had responded to an advertisement for work abroad and would know not to respond to a similar advertisement again. He had also been separated from his traffickers for almost three years and had reported no difficulties since returning to Albania. [56][49]
The alleged international nature of the trafficking network did not itself establish that Albania could not provide protection or that internal relocation was impossible. The Respondent’s fears concerned two individuals, and there was no evidence beyond his assertions that either intended to locate or harm him, or that the Albanian state would be unable or unwilling to protect him. [46][36]
Applying the principles concerning sufficiency of protection and internal relocation, the Court held that the Respondent had not shown any specific reason why protection would be insufficient or why relocation would fail. The Upper Tribunal had not properly engaged with the objective evidence or identified specific subjective evidence demonstrating a gap in protection or relocation possibilities. [36][57][29]
The human-rights claim was treated as hopeless or bound to fail because no arguable merit was advanced on appeal. [58][59]
Because the appeal succeeded on the first two grounds, the Court did not determine the third ground concerning the mandatory order and the Respondent’s possible return to the United Kingdom. Those issues were left for a case in which they were material. [60]
Holding and Implications
Appeal allowed. The Court held that the Appellant had applied the correct certification test and that the Respondent’s protection and human-rights claims were bound to fail. [29][61][62][63]
The direct consequence was that the Upper Tribunal’s conclusions on certification could not stand. The Court did not decide the separate issue concerning the mandatory return order because it did not arise after the appeal succeeded. No new precedent was set.
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