Public Law Solicitors

An Upper Tribunal Judge has granted a client, represented by Duncan Lewis, permission to challenge a Section 94 certificate, due to the Secretary of State’s ‘generic’ analysis.

On 24 April 2024, Upper Tribunal Judge Rintoul granted an Albanian national permission to challenge the certification of his asylum claim as clearly unfounded under Section 94 of the Nationality, Immigration and Asylum Act 2002.

The client arrived in the United Kingdom in March 2021 and claimed asylum as a minor. He had fled Albania due to persecution related to his sexual orientation. At the age of 15, he entered into a same-sex relationship with a boy at his school.

Upon the relationship being discovered, the client suffered mistreatment by classmates and teachers. The client's community was largely unaccepting of the LGBT community. After his father discovered his sexuality, the client was beaten by both his father and brother, and his father threatened to kill him if he ever returned to Albania.

The client had initially claimed asylum in France but travelled onwards to the UK after being harassed by other asylum-seeking children in his accommodation, who discovered photographs of him with his boyfriend.

The Secretary of State refused the client’s protection claim on 20 November 2023, certifying it as clearly unfounded under Section 94(1) of the Nationality, Immigration and Asylum Act 2002. The Secretary of State accepted that the client had a subjective fear of returning to Albania, however they considered that this fear was not objectively well founded.

The Secretary of State based their decision on the fact that the client feared non-state actors who did not have any significant power or influence over local or state government. The Secretary of State contended that the client could seek redress from the authorities, citing ‘improvement’ in the effectiveness of police, and the number of serving police officers in the country.

Judge Rintoul found it arguable that a judge could conclude that there would not be sufficient protection for this client. As noted in the grounds for Judicial Review, the refusal letter did not properly engage with evidence of a lack of protection in cases where sexual orientation is an issue. The Judge also found that specific facts of the client’s case had not been considered in assessing internal flight, and the reasonableness of relocation should it be available.

The case has been listed for a substantive hearing on 7 August 2024, although the Government Legal Department have indicated their intention to settle the matter.

The client is represented by Michael O’Brien under the supervision of Ellen McCormack with Counsel Mark Symes from Garden Court Chambers.

Duncan Lewis Solicitors

Duncan Lewis’ Public Law team, ranked in Chambers & Partners and The Legal 500 UK directories, has a broad practice representing both privately and publicly funded (legal aid) clients in matters involving immigration; asylum and human rights and deportation matters, with a niche practice in immigration and civil liberties claimant judicial review matters. They have significant practice in challenging delays in Home Office decision making, unlawful immigration detention cases with high net claims for damages and challenging immigration removal decisions, particularly third country removal cases.