This concerned a claim for judicial review against the Home Office regarding the certification of the decision to refuse BM’s asylum and human rights claim as ‘clearly unfounded’ in accordance with Section 94(1) and (3) of the Nationality, Immigration and Asylum Act 2002. This was on the basis that the Home Office believed to be South African as opposed to Zimbabwean as claimed. The effect of the certificate was to deny BM the right to appeal the refusal of his asylum claim in-country. In order to appeal this, he would, first, have to return to South Africa, a country he claimed to have no right to reside.

In determining that BM was South African, the Home Office rejected his claim that his South African passport had been fraudulently obtained by the agent who had assisted him in obtaining a visa for the UK. In relation to the BM’s claim to be from Zimbabwe, the Home Office intimated that the Zimbabwean documents he produced could have been fraudulently obtained, by reference to an extract from its own 2012 “Country Information and Origin Report”. In so doing, the Home Office ignored a similar reference to Zimbabwean nationals obtaining genuine South African documents through the bribery of corrupt officials. The Home Office also chose to ignore the local knowledge BM had clearly demonstrated in the accurate and detailed answers given during his substantive interview regarding the area of Zimbabwe from which he claimed to originate.

Proceedings for judicial review were issued during the course of which it was argued that the Home Office had applied the wrong legal test in certifying the claim, failed to take into account relevant evidence supporting BM’s claim to be Zimbabwean and had failed to give separate consideration to the question of certification as required by the case law.

The Home Office initially sought to challenge the claim for judicial review. The matter went before a judge to determine whether permission should be given on the papers to allow the claim to proceed to final hearing. Permission was partially granted, following which the Home Office decided to concede the claim. The matter finally settled with the Home Office agreeing to reconsider BM’s claim afresh. Although, the Home Office again refused BM’s asylum claim, it granted BM the right to appeal the decision to the First-tier Tribunal in-country.