Tribunal decisions

The decision

Case No: JR-2024-LON-003306
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

27 June 2025
Before:

UPPER TRIBUNAL JUDGE MANDALIA

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Between:

THE KING
on the application of
Marcos Vinicyus Massimetti Toth
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Marcos Vinicyus Massimetti Toth
The applicant appeared in person, unrepresented

Mr Joshua Yetman
(instructed by the Government Legal Department) for the respondent

Hearing date: 26 June 2025

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J U D G M E N T

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Judge Mandalia:
1. The applicant is a national of Brazil. She first arrived in the United Kingdom on 29 September 2011 and that in January 2012 she married Juan Borrocal Alonso. In September 2012, she was granted an EEA Residence card as a family member of an EEA national exercising treaty rights in the UK. In June 2014 because of difficulties she was experiencing in her relationship she was encouraged to return to Brazil for what was intended to be a short period. In fact she returned to Brazil for a period of about 15 days and returned to the UK on 30 June 2014. On arrival, she was again granted leave to enter as family member of an EEA national exercising treaty rights in the UK. She has remained in the UK since.
2. On 25 May 2022, correspondence was sent by the respondent to the applicant that indicated that as the family member of an EU or EEA national the applicant could have rights under the Citizens’ Rights agreements, which means she may be able to obtain leave to remain in the UK by applying to the EU Settlement Scheme. No such application was made.
3. On 18 August 2024 the applicant was encountered by Immigration Enforcement and she was detained. On 23 August 2024 removal directions were set for her removal to Brazil on 3 September 2024. On 29 August 2024, the applicant made a claim for asylum and the removal directions were cancelled. On 12 September 2024, the respondent requested further information from the applicant about her human rights claims.
The Claim for Judicial Review
4. By this claim she challenges the respondent’s decision of 22 September 2024. That is a decision to refuse her protection and human rights claims and to certify those claims as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
5. As originally pleaded on the Claim Form, the applicant expressed grave concerns regarding what she describes as the procedural deficiencies, lack of substantive due process, and apparent breaches of natural justice in the handling of her immigration and asylum case. I mean no disrespect to the applicant, who I acknowledge is a litigant in person, by simply adopting the headings she referred to. First, obstacles to legal representation; second, deficient Implementation of Rule 35; third, unwarranted criminalization and stigmatization; and fourth, concerns regarding the use of artificial intelligence, AI, in asylum decision-making. She invites the Tribunal to intervene and direct the respondent to provide a clear, timely solution for regularizing her immigration status. She refers to her presence in the UK since 2014, her relationship and the roots that she has established in the UK.
6. The claim is defended by the respondent.
7. On 28 January 2025, permission to claim Judicial Review of the respondent’s decision was granted by Upper Tribunal Judge Rastogi. She made an order in the following terms:
“Permission is granted in relation to the ground relating to the legality of the respondent’s certification of the applicant’s human rights claim only.
Permission is refused on all other grounds.”
8. Upper Tribunal Judge Rastogi set out the following reasons for her order:
“5. The only decision under challenge referred to in the application form is the decision of 22 September 2024. I will call that decision the ‘certification decision’ from now onwards. To the extent the grounds raise challenges or concerns with any issue not dealt with by the certification decision, they are not relevant to the decision under challenge and are unarguable.
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7. Within the certification decision, the respondent considered the applicant’s claim based on a fear of return as a result of his status as a gay man is clearly unfounded. In carrying out this assessment, it is clear the respondent considered the applicant’s claim at its highest [41], but decided it is bound to fail as the background country evidence shows there to be both sufficient protection for the applicant in Brazil and a reasonable internal relocation alternative. Although the applicant has submitted some country information in his bundle, it is not sufficient to render it arguable that this part of the respondent’s decision was infected by a public law error because his subjective fears are not well-founded so the protection claim is bound to fail on any view.
8. The thrust of the applicant’s challenge to the certification decision on human rights grounds, as revealed by his grounds of challenge and the supporting evidence in his bundle, is the combination of the length of his residence in the UK, his ties and integration here, his family life in the UK, his health problems and the difficulties he will face in Brazil returning there as a gay man. Whilst the respondent considered all of these factors in the refusal letter the issue is whether, taken all these factors together and weighing them against the public interest, the applicant’s claim is bound to fail. It is arguable that it is not bound to fail so on this limited ground only, permission is granted.
9. On all other grounds, permission is refused.”
The Hearing of the claim Before me
9. In readiness for the hearing before me, I have been provided with a ‘Trial Bundle’ that has been prepared by the respondent comprising of some 319 pages. I have received a Skeleton Argument from the applicant dated 8 June 2025 and a skeleton argument settled by Mr Yetman dated 23 June 2025 on behalf of the respondent.
10. I have also had the benefit of hearing from both the applicant and Mr Yetman.
11. In summary, the applicant submits the respondent’s decision is irrational, procedurally unfair, and unlawful, in failing to consider the totality of her circumstances. The applicant states she is a trans woman, who has now lived in the UK for a period of 14 years, and has set out in paragraph [32] of her skeleton argument a number of relevant factors that I do not need to set out, but have had regard to, that taken cumulatively establish that her claim is not bound to fail. She seeks an order that the respondent’s decision is quashed, the certification of the claim is unlawful and that her clam be considered lawfully, with a full appeal right.
12. In her oral submissions before me the applicant adopted her written skeleton argument and submits that contrary to what is said by the respondent it is simply not safe for a trans woman or the LGBT community to live in Brazil. She referred me to a message that she received from a friend who I refer to as Pablo, that she met when they were in immigration detention. The message was sent to her on 3 March 2025 and concerns what Pablo has described as a homophobic attack that he suffered in Brazil, and expresses his deep concern regarding the severe risks LGBTQ+ individuals face in the country. The message post-dates the respondent’s decision but for present purposes nothing turns on that. The applicant explained that Pablo had been removed to Brazil and she understands he reported the attack to the police. He told the police that he did not know who had attacked him, and was told by the police that they cannot take any action. It is perhaps unsurprising that the police were unable to take any action if Pablo did not know who had attacked him. It would have no impact on whether there is a sufficiency of protection available in Brazil to the required standard, and the message will not make a material difference to the outcome of the applicant’s claim.
13. On behalf of the respondent, Mr Yetman adopted his skeleton argument. He submits the respondent carefully identified all of the evidence that is relied upon by the applicant in support of her claims. The respondent considered the material and reached a decision that is neither irrational nor unreasonable. The respondent considered all relevant factors both in form and in substance. The respondent reached a decision that was open to her and was on any view entitled to certify the claims as clearly unfounded for the reasons set out.
Decision
14. The task of the Tribunal in a judicial review of a decision to certify a claim as clearly unfounded in terms of section 94(3) and (4) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) is to review the decision making of the respondent.
15. In ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, which is cited by the applicant, the House of Lords considered section 94 of the 2002 Act, the effect of which is that the applicant is precluded from bringing an appeal to the Tribunal. The House of Lords considered two issues of procedure: (1) Where the Secretary of State has so certified, how should she approach the consideration of further submissions made by the claimant from within the jurisdiction? (2) How should the court, in proceedings for judicial review, approach the decision made by the Secretary of State in relation to those further submissions?. As far as certification is concerned, Lord Phillips said, at [21], that the correct approach is one of judicial review that involves the anxious scrutiny that is required where human rights are in issue. He described at paragraph [22] that the test of whether a claim is ‘clearly unfounded’ is a black and white test. He referred to his decision in R(L) v Secretary of State for the Home Department [2003] EWCA Civ 25, in which he said, at [57] and [58] that:
“57. …the decision-maker will (i) consider the factual substance and detail of the claim, (ii) consider how it stands with the known background data, (iii) consider whether in the round it is capable of belief, (iv) if not, consider whether some part of it is capable of belief, (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.
58. … In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise.”
16. Lord Phillips concluded, at [23]:
“Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State’s conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State’s view was irrational.
17. In FR (Albania) v Secretary of State for the Home Department [2016] EWCA Civ 605, Beatson LJ considered the application of section 94(3) of the 2002 Act which is concerned with States listed in section 94(4), of which Brazil is one. He said, at [47], that although section 94 in general, empowers but does not require the Secretary of State to certify a claim, the terms of section 94(3) are such that in the case of those entitled to reside in one of the States listed in subsection (4), she is required to certify the claim unless she is satisfied that it is not clearly unfounded. At paragraphs [56] and [62] he said:
“56. As to the approach of a court considering a judicial review of certification, it was stated that the court was not to substitute its own view as to whether the claims were “clearly unfounded” but should apply the normal principles of judicial review. These (see Lord Phillips at [21]) involve “the anxious scrutiny that is required where human rights are in issue”. Lord Phillips also stated that, while as a matter of principle judicial review is the correct approach, in a case such as ZT's, either approach involves the same mental process. He stated (at [22]) that this was “because the test of whether a claim is ‘clearly unfounded’ is a black and white test”, and the answer could not, for instance, “depend upon whether the burden of proof is on the claimant or the Secretary of State” although section 94 makes express provision in relation to the burden of proof. Lord Phillips then cited paragraphs [56] to [58] of his judgment in R (L and another) .
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62. To conclude, the intensity of review in a certification case is at the more and possibly most intensive end of the spectrum to which I have referred at [48] above, but the jurisdiction remains a supervisory and reviewing one. It is also important not to lose sight of the fact that provisions in the 2002 Act give the Secretary of State a certain “gate-keeping” or “screening” function as to the availability of an in-country appeal by the process of certification. As I stated in R (Toufighy) v Secretary of State [2012] EWHC 3004 (Admin) at [73], while recognising the intensity of review in this context, care must be taken not inappropriately to deprive the Secretary of State of that function.”
18. The applicant’s protection claim is based upon her fear of being bullied by the community in Brazil because of her sexual identity. In summary, she claims that she was mistreated and bullied in Brazil, including at least initially, by her father and sister. Although she did not receive any death threats, she claims Brazil is an extremely dangerous place for LGBT people. The applicant’s human rights claim is based on her relationship with her partner, Andrew Black, who is a British citizen.
19. The respondent accepts the applicant is a national of Brazil and that the protection claim made by the applicant engages the 1951 United Nations Convention relating to the Status of Refugees. Without making any concessions, taking the applicant’s case at its highest, the respondent concluded that any subjective fear the applicant may have of returning to Brazil, is not objectively well founded. In reaching that decision the respondent had regard to the test set out by Lord Hope in the Supreme Court in HJ (Iran) v SSHD [2010] UKSC 31. The respondent, having considered the background material and the difficulties faced by the LGBT community, concluded that the second stage of the test is not satisfied. That is, LGB people are able to live openly without being subjected to treatment amounting to persecution. In any event, the respondent, having considered the background material, concluded that the authorities in Brazil are able to provide the applicant with effective protection to the standard set out in Horvath [2000] UKHL 37. The respondent also considered whether the appellant could live elsewhere in Brazil and concluded that it is not unreasonable to expect the applicant to return to Belo Horizonte, Sao Paulo, Rio De Janeiro and Brasilia, in Brazil.
20. As far as the applicant’s human rights claim is concerned, the respondent considered the applicant’s claim that she has a partner, Andrew Black, who was born in the United Kingdom. The respondent concluded that the applicant has provided insufficient evidence that she has been living with her partner in a relationship akin to marriage for at least two years before the date of his application. The applicant therefore, the respondent concluded, fails to meet the eligibility requirements under the partner route of Appendix FM of the Immigration Rules. The respondent also considered the applicant’s ‘private life’ claim and concluded the applicant does not meet the requirements of Appendix Private Life of the Immigration Rules. In particular, the respondent said the applicant has not demonstrated any very significant obstacles to her integration into Brazil. She had lived in Brazil the majority of her life. She speaks Portuguese, the official language in Brazil and also speaks English. She has been educated and attended college completing a hair and beauty course, and has experience of working as a hairdresser. She is of working age and possesses the skills and experience to return and live in Brazil.
21. The respondent also considered whether there are any exceptional compassionate circumstances, or other compelling reasons, which could lead to a grant of Discretionary Leave, in line with the Home Office’s published policy. The respondent considered whether the applicant should be allowed to stay in the UK based on Article 3 of the ECHR on medical grounds, noting she has ADHD and also suffers suffered from stomach ulcers, for which medication was prescribed. The claim was considered in line with the decision of the Supreme Court in AM Zimbabwe [2020] UKSC 17. Having considered the background material regarding the medical facilities, treatment and care available in Brazil, the respondent said the applicant does not meet the test under Article 3 or the requirements for a grant of discretionary leave to remain.
22. The respondent went on to note that section 94(3) of the 2002 Act applies to the applicant’s protection and human rights claims. Section 94(3) requires that of the respondent is satisfied, as she was here, that the applicant is entitled to reside in a state listed in subsection (4), as Brazil is, she shall (my emphasis) certify the claim as clearly unfounded unless satisfied that it is not clearly unfounded. The respondent set out her reasons for certifying the applicant’s claims as clearly unfounded at paragraph [113] to [126] of the decision. There is nothing to be gained by my summarising those reasons in this decision. It is sufficient to note that the respondent draws upon the reasons previously set out at some length in her decision for rejecting the appellant’s claims, and concludes the claims are wholly lacking in substance and any appeal would be bound to fail.
23. Standing back, it is clear in my judgment that as far the protection claim is concerned, the respondent accepts that on the face of it, the claim made engages and falls within the scope of the Refugee Convention. The respondent confirms that the applicants’ claim has been taken at its highest. The detailed nature of the respondent’s decision that follows at paragraphs [42] to [79] amply demonstrates that full and proper consideration was given to all aspects of the applicant’s claim. The respondent has had proper regard to all relevant matters including the protection available to the applicant in Brazil and whether she can internally relocate.
24. The applicant’s human rights claims are also carefully addressed at paragraphs [86] to [108] of the decision. I accept, as Mr Yetman submits, the applicant failed to establish she would meet the requirements set out in the partner route under Appendix FM of the Immigration Rules, given i) she was not and is not married/in a civil partnership with her partner, Andrew, and ii) she did not provide sufficient evidence to demonstrate that they had been living together for at least two years before the applicant applied for asylum. As Mr Yetman points out, in an email from Mr Black dated 26 September 2024, Mr Black had claimed they have lived together since July 2023.
25. In Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, Lord Reed emphasised that the failure to meet the requirements of the Immigration Rules is a relevant and important consideration in an Article 8 assessment because the Immigration Rules reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. The appellant does not meet the requirements for leave to enter set out in the immigration rules. As set out by the Court of Appeal in TZ (Pakistan) [2018] EWCA Civ 1109, compliance with the immigration rules would usually mean that there is nothing on the respondent’s side of the scales to show that the refusal of the claim could be justified. At paragraphs [32] to [34], the Senior President of Tribunals confirmed that where a person meets the rules, the human rights appeal must succeed because ‘considerable weight’ must be given to the respondent’s policy as set out in the rules. Conversely, if the rules are not met, although not determinative, that is a factor which strengthens the weight to be attached to the public interest in maintaining immigration control.
26. I have carefully considered the factors set out in paragraph [32] of the applicant’s skeleton argument that she submits taken cumulatively establish that her claim is not bound to fail. I disagree. They are all factors that the respondent has considered in her reaching her decision. Even considered cumulatively, they are not factors that on a legitimate view could tip the balance in the applicant’s favour when one considers whether the public interest in the maintenance of immigration control is outweighed in this case by factors that weigh in favour of the applicant.
27. Reading the respondent’s decision as a whole, in my judgment, the respondent has not acted unlawfully, unreasonably or irrationally by reference to the principles set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The respondent’s decision to refuse the application follow a fact specific and holistic consideration of the evidence before the respondent. It was open to the respondent to certify the applicant’s human rights claims as clearly unfounded. There is nothing in the facts and circumstances of this case that creates a realistic prospect of success before a Tribunal.
28. It follows that I dismiss the claim for judicial review.
V. Mandalia
Upper Tribunal Judge Mandalia
27 June 2025
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