Tribunal decisions

The decision

Case No: JR-2025-LON-003308
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

28 May 2026

Before:

UPPER TRIBUNAL JUDGE KAMARA

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Between:

THE KING
on the application of
Afrim Brahimi
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Mr M Aslam
(instructed by ASR Advantage Solicitors), for the applicant

Mr R Ross
(instructed by the Government Legal Department) for the respondent

Hearing date: 23 April 2026

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J U D G M E N T

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Judge Kamara:

1. By way of an application filed on 26 September 2025, the applicant brings judicial review proceedings challenging the decision of the Secretary of State taken on 21 August 2025, in which his protection and human rights claims were refused.

2. The protection claim was certified under section 94 of the Nationality, Immigration and Asylum Act 2002 on the basis that it was clearly unfounded. The human rights claim was certified under section 94B of the same Act. Also challenged was the respondent’s decision to deport the applicant to Albania on 2 October 2025.

3. By way of background the applicant, who entered the United Kingdom clandestinely in 2016, was convicted on 30 March 2021 of being concerned in the supply of Cannabis and sentenced to 22 months’ imprisonment.

4. The challenge in relation to the removal directions has fallen away as the applicant was granted a stay by Upper Tribunal Judge Hirst on 26 September 2025.

5. The basis of the original challenge was summarised at paragraph 25 of the grounds as follows:

There is a single ground that the Respondent erred because:

a. There is a lack of anxious scrutiny and insufficient assessment of unduly harsh test in respect of the children as the decision failed to appreciate given the A’a wife and children are settled in the UK as refugees, there will be a permanent separation if the A is deported to Albania

b. insufficient assessment to the best interest of children under Section 55 of the Borders, Citizenship and Immigration Act 2009

c. certification of the protection claim deprives the A of a right of appeal under human rights and therefore unlawful

6. The relief sought in the original grounds included a declaration that the decision ‘certifying the claim as clearly unfounded is unlawful.’

7. Other than a brief reference to section 94B of the 2002 Act at paragraph 34 of the grounds, mentioning Kiarie and Byndloss [2017] UKSC 42 there was no engagement with this aspect of the respondent’s decision.

8. In the acknowledgement of service filed on 21 October 2025, the respondent addressed the grounds, and in respect of ground 3 dealt with the 94B certificate at paragraph 58, specifically engaging with the authority of Kiarie and Byndloss.

9. Permission to proceed with the judicial review was granted by Upper Tribunal Judge Kebede on the papers on 16 December 2025 for the following reasons:

The Applicant seeks to challenge the Respondent’s decision of 21 August 2025 refusing his asylum and human rights claim and certifying the claim as clearly unfounded under section 94(1) of the Nationality, Immigration and Asylum Act 2002.

It is just about arguable that, given the overall circumstances of this case and considering that the Applicant is in a genuine and subsisting relationship with his partner, a refugee, and their children (the Applicant’s child and step-child), this was not a case that was bound to fail before a Tribunal and ought arguably not to have been certified as ‘clearly unfounded’.

10. The respondent filed detailed grounds of defence on 3 February 2026 in which it is contended that the applicant has an alternative remedy of an appeal to the First-tier Tribunal in respect of his human rights claim. The detailed grounds emphasise that the focus of the applicant’s challenge in the grounds is solely to the human rights decision and that there has been no attempt to impugn the respondent’s decision in respect of the protection claim. It is also contended that the grant of permission made no mention of s94B and elided the protection and human rights certifications. Note was taken of the applicant’s failure to challenge the lawfulness of the section 94B certificate in respect of the respondent’s conclusion that he could conduct his appeal from abroad and the applicant had provided no reasons as to why he could not do so.

11. On 7 April 2026, the applicant filed an application without consent to amend the grounds. Parts a and b of the original grounds are replicated. Only part c. has been amended to read:

the Respondent erred in certifying the Applicant’s claims, including under section 94B of the Nationality, Immigration and Asylum Act 2002, without properly considering whether the Applicant could effectively pursue an appeal from abroad in light of his Article 8 claim.

The hearing

12. For the applicant, Mr Aslam (who replaced previously instructed counsel) accepted that only the certification of the human rights claim was challenged. He submitted that the amended grounds were in fact just a clarification, adding that he agreed that neither sets of grounds (drafted by counsel, Mrs T Srindran) particularised the challenge to the lawfulness of the section 94B certificate. He relied on the mention of section 94B at paragraph 34 of the original grounds in support of his clarification theme.

13. On the issue of alternative remedy, Mr Aslam accepted that there was no evidence of the effect of separation on the appellant or his children but asked me to accept that there would be a breach of the applicant’s human rights.

14. While arguing that Watson [2018] UKUT 165 (IAC) was not relevant, Mr Aslam accepted that the applicant had adduced no evidence of the challenges to pursuing his appeal to the First-tier Tribunal remotely. On the latter point, Mr Aslam asked me to accept that the respondent had not considered the ages and needs of the applicant’s children or their inability to visit the applicant in Albania, relying on 75 v) and vi) of Nixon [2018] EWCA Civ 3. He emphasised that he was arguing that a temporary separation while the appeal was conducted was sufficient to amount to a breach of human rights.

15. Mr Ross maintained the respondent’s opposition to the amendment application for the same reasons provided in his comprehensive skeleton argument and detailed grounds. Referring to the judicial review application form, Mr Ross argued that section 94B was never put in issue by the applicant until three weeks before this hearing. He pointed to the lack of particularity with the substance of the amendment as well as the absence of mention of the jurisdiction point in that application or within the applicant’s skeleton argument.

16. The Upper Tribunal is grateful for the submissions from counsel.

Legal Framework

17. Section 92 of the Nationality, Immigration and Asylum Act 2002 states as follows:

92 Place from which an appeal may be brought or continued

(1) This section applies to determine the place from which an appeal under section 82(1) may be brought or continued.

(2) In the case of an appeal under section 82(1)(a) (protection claim appeal), the appeal must be brought from outside the United Kingdom if—
(a) the claim to which the appeal relates has been certified under section 94(7) (removal to a safe country) [...]
Otherwise, the appeal must be brought from within the United Kingdom.

(3) In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if—
(a) the claim to which the appeal relates has been certified under section 94(7) (removal to a safe country) or section 94B (certification of human rights claims [...])

18. Section 94 B of the 2002 Act states:

94B Appeal from within the United Kingdom: certification of human rights claims

(1) This section applies where a human rights claim has been made by a person (“P”)

(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, refusing P entry to, removing P from or requiring P to leave the United Kingdom, pending the outcome of an appeal in relation to P’s claim, would not be unlawful under 17 11 section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if refused entry to, removed from or required to leave the United Kingdom.

19. Nixon [2018] EWCA Civ 3, the following extracts from

75. In particular, the following propositions can be derived from the authorities.

i) Where the Secretary of State rejects a human rights claim of a proposed deportee, an out-of-country appeal will not always be ineffective in protecting the human rights involved. Whether it will be effective will depend upon the facts and circumstances of the particular case.

ii) Where the Secretary of State precludes an in-country appeal, by (e.g.) certifying a human rights claim under section 94B, that is not necessarily unlawful; but it is sufficient to establish a potential interference with the proposed deportee's article 8 rights, such that a burden is imposed on the Secretary of State to establish that that interference is justified and proportionate, and that removal from the UK without waiting for an appeal to run its course strikes a fair balance between the adverse effect of deportation at that stage on relevant rights under article 8 and the public interest. In particular, the Secretary of State will need to show that an out of-country appeal will be effective to protect the article 8 rights in play.

iii) ***

iv) It will be a highly material consideration if the deportation was lawful or apparently lawful, in the sense that, even if a human rights claim that a deportation order should not be made or maintained has been unlawfully certified, the individual was deported on the basis of a deportation order that was not bad on its face and was not, at the relevant time, the subject of any appeal; and/or an 14 application for a stay on removal had been refused or the court had directed that any further proceedings should not act as a bar to removal. On the other hand, it will also be material if the individual has been removed in the face of a stay on removal, or even if there is an active relevant appeal or judicial review in which the issue of a stay on removal has not been tested.

v) The extent to which the individual's appeal will be adversely affected if he is not returned to the UK will also be highly relevant. It will be adversely affected if it is assessed that, if he is restricted to bringing or maintaining an out-of-country appeal, that will be inadequate to protect the article 8 rights of the individual and his relevant family members. The continuing absence of the individual from the UK may adversely affect his ability to present his appeal properly in a variety of ways, for example he may be unable properly to instruct legal representatives; he may be unable to obtain effective professional expert evidence; he may be unable to give evidence, either effectively or at all. If the court assesses that, even if the exercise would be more difficult than pursuing his appeal in the UK, the deportee could effectively pursue his appeal from abroad, that is likely to be finding of great weight and will often be determinative in favour of exercising the court's discretion not to make a mandatory order for return. On the other hand, if the court assesses that he could not effectively pursue an appeal from abroad, then that may well be determinative in favour of exercising that discretion in favour of making a mandatory order for return.

vi) In addition to these procedural matters, the deportee's continuing absence from the UK may be a breach of article 8 in the sense that he is deprived from being with his family, and they from being with him, pending the outcome of the appeal. Generally, such a breach will not be irremediable. However, in addition to that being a potential substantive breach of article 8, it may result in his article 8 claim in the deportation case being undermined on a continuing basis, which may be a factor of some importance. These matters too may be relevant to the assessment of whether to make a mandatory order for the deportee's return.

vii) ***

20. AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 115 (IAC), headnotes 1-5:

(1) In the light of Kiarie and Byndloss v Secretary of State for the Home Department [2017] UKSC 42, the First-tier Tribunal should adopt a step-by-step approach, in order to determine whether an appeal certified under section 94B of the Nationality, Immigration and Asylum Act 2002 can be determined without the appellant being physically present in the United Kingdom.

(2) The First-tier Tribunal should address the following questions:

1. Has the appellant’s removal pursuant to a section 94B certificate deprived the appellant of the ability to secure legal representation and/or to give instructions and receive advice from United Kingdom lawyers?
2. If not, is the appellant’s absence from the United Kingdom likely materially to impair the production of expert and other professional evidence in respect of the appellant, upon which the appellant would otherwise have relied?

3. If not, is it necessary to hear live evidence from the appellant?

4. If so, can such evidence, in all the circumstances, be given in a satisfactory manner by means of video-link?

(3) The First-tier Tribunal should not lightly come to the conclusion that none of the issues covered by the first and second questions prevents the fair hearing of the appeal.

(4) Even if the first and second questions are answered in the negative, the need for live evidence from the appellant is likely to be present. A possible exception might be where the respondent’s case is that, even taking a foreign offender appellant’s case at its highest, as regards family relationships, remorse and risk of re-offending, the public interest is still such as to make deportation a proportionate interference with the Article 8 rights of all concerned.

(5) If the First-tier Tribunal concludes that the appeal cannot be lawfully determined unless the appellant is physically present in the United Kingdom, it should give a direction to that effect and adjourn the proceedings.

21. R (Glencore Energy Ltd) v HMRC [2017] EWCA Civ 1716, Sales J (as he then was):

56. Treating judicial review in ordinary circumstances as a remedy of last resort fulfils a number of objectives. It ensures the courts give priority to statutory procedures as laid down by Parliament, respecting Parliament’s judgment about what procedures are appropriate for particular contexts. It avoids expensive duplication of the effort which may be required if two sets of procedures are followed in relation to the same underlying subject matter. It minimises the potential for judicial review to be used to disrupt the smooth operation of statutory procedures which may be adequate to meet the justice of the case. It promotes proportionate allocation of judicial resources for dispute resolution and saves the High Court from undue pressure of work so that it remains available to provide speedy relief in other judicial review cases in fulfilment of its role as protector of the rule of law, where its intervention really is required.

22. Watson [2018] UKUT 165 (IAC).

1) Where an appellant's appeal has been certified under section 94B of the Nationality, Immigration and Asylum Act 2002 and the appellant has been removed from the United Kingdom pursuant to that certificate, the First-tier Tribunal is the forum for determining whether, in all the circumstances, the appeal can lawfully be decided, without the appellant being physically present in the United Kingdom. The First-tier Tribunal is under a continuing duty to monitor the position, to ensure that the right to a fair hearing is not abrogated. In doing so, the First-tier Tribunal can be expected to apply the step-by-step approach identified in AJ (s 94B: Kiarie and Byndloss questions) Nigeria [2018] UKUT 00115 (IAC).

Application to amend the grounds

23. The application to amend the grounds is refused for the following reasons. There is no good reason as to why a challenge to the section 94B certificate was not brought in the original grounds. It is plainly stated on the covering letter which accompanied the impugned decision that two certificates have been applied, sections 94 and 94B. Furthermore, the decision under challenge addresses at some length, each of the certificates from paragraph 137 onwards. The section 94B certificate has a separate heading, in bold, and detailed reasons are provided for the application of this certificate between 146 and 168 of the decision. There is no excuse for the failure in this case to engage with this certificate and the reasons underpinning it.

24. I reject Mr Aslam’s suggestion that the amended grounds amounted to mere clarification. There was no suggestion in the original grounds or anywhere else in the pleadings that the section 94B certificate was impugned. In section 5.1 of the UTIAC 1 in response to the question regarding what decision(s) the applicant was asking the Tribunal to review, the response mentioned only the s94 certificate. The reference to section 94B at paragraph 34 of the grounds was unaccompanied by any legal argument and went no further than an exceedingly brief summary of Kiarie and Byndloss.

25. A further reason for refusing permission to amend the grounds is the significant delay in making the application. The same counsel has been involved in these proceedings from the very beginning and until Mr Aslam was instructed shortly before the hearing. The same counsel, Mrs Srindran, drafted the original grounds dated 22 September 2025. Yet, it was not until after the respondent filed her detailed grounds, that the application was made. Clearly, counsel realised her error after reading that document. Even then the application was not made promptly in that it was a further two months before the application was filed. The delay in amending the grounds being seven months, in total.

26. In addition to not amounting to clarification of the original grounds, the amendment sought to the grounds is not an amendment at all but a completely new challenge to a different aspect of the decision, relying on different authorities.

27. The respondent accepts that prejudice to her caused by the lodging of the amended grounds is slight nonetheless, regard must be given to procedural rigour.

28. The applicant has gained significant advantages in these proceedings owing to counsel’s misconceived grounds, in that he has remained in the United Kingdom since September 2025 having been granted a stay as well as permission to proceed with his judicial review claim.

29. Even had permission been granted to admit the new ground, permission to proceed would have been refused. As the following extract from the decision letter demonstrates, the applicant was given the opportunity to provide reasons as to why he should not be required to appeal from outside the United Kingdom prior to the decision under challenge being made.

150. You were informed in the decision dated 15 October 2021 that the Secretary of State might certify your claim under section 94B so that any appeal can only be brought from outside the UK and that if there were any reasons that you should not be required to appeal from outside the UK, then you should tell us.

151. You have not provided any specific reasons as to why you should not be required to appeal from outside the UK. However, we have considered what is known about your personal circumstances and concluded that the requirement for you to appeal from outside the UK is proportionate and would not cause serious irreversible harm or otherwise breach human rights.

30. These proceedings are not the appropriate venue for counsel for the applicant to submit that there would be a breach of human rights (albeit without any underpinning evidence) when the applicant failed make this argument to the Secretary of State when he had the opportunity to do so. I should add that the applicant does not dispute that he had that opportunity.

31. In the decision, the respondent gave ample consideration to what she knew of the applicant’s situation prior to concluding that his removal to Albania temporarily while his appeal progressed would not case serious irreversible harm.

32. Mr Aslam made submissions as to the effect of the appellant’s temporary separation from his children however, that information was considered at paragraph 160 of the decision letter

We accept that you have two children in the UK. (C1) who is aged 7 years and (C2) who is 2 years of age. Their best interests have been a primary consideration in making this decision. We accept that you enjoy a genuine and subsisting parental relationship with your children and acknowledge that it would be in their best interests for you to be able to appeal from the UK. However, this is outweighed in your case by the public interest in deporting you as quickly and efficiently as possible.

33. Nor can the respondent be criticised for not considering information never advanced by the applicant regarding any reasons as to why he could not conduct his appeal from Albania. Indeed, even at this stage there is still no witness statement from the applicant addressing the relevant issues in this case. Furthermore, should the applicant wish to put forward reasons as to why he could not appeal from abroad, he has an alternative remedy of making an application to the First-tier Tribunal, applying headnote 1 of Watson.

Decision on the substantive claim

34. As for the substantive consideration of the original grounds upon which permission was granted, the challenge is dismissed. The complaints amount to little more than disagreement with the respondent’s decision on the human rights claim. Furthermore, the grounds do not adequately engage with the fact that the applicant has an alternative remedy to challenge these aspects of the impugned decision, that of an appeal to the First-tier Tribunal.

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