MB v Home Secretary: Court of Appeal restores certification of trafficking victim's asylum claim

The Court of Appeal has overturned an Upper Tribunal ruling that had required the Home Secretary to facilitate the return to the United Kingdom of an Albanian man deported after his asylum and human rights claims were certified as clearly unfounded, restoring the original certification and the removal of his right of appeal.

MB, an Albanian national, was trafficked to the UK in 2023 and forced to work on a cannabis farm after amassing a gambling debt in Albania and responding to an advertisement offering work abroad. Following a police raid, he was convicted of drug production offences and sentenced to sixteen months' imprisonment, notwithstanding a Competent Authority finding that he was a genuine victim of modern slavery. On completion of his sentence, the Home Secretary certified his protection and human rights claims under section 94 of the Nationality, Immigration and Asylum Act 2002, on the basis that any appeal would be bound to fail, and deported him to Albania.

MB challenged the certification by judicial review. Upper Tribunal Judge Pinder found in his favour, concluding that the Home Secretary had failed to apply the correct legal test to the particular facts of his case, in particular the risk that a past victim of trafficking might face renewed danger from his traffickers or an insufficiency of state protection. The judge went on to order the Home Secretary to take steps to allow MB to return to the UK pending a fresh hearing of his appeal.

Giving the leading judgement, with which Lord Justice Stuart-Smith and Lord Justice Peter Jackson agreed, Lady Justice Whipple held that several of the Upper Tribunal's specific criticisms of the Home Secretary's decision letter could not be sustained. The letter had, in terms, applied the established "bound to fail" test, had given separate consideration to certification as distinct from the underlying refusal, and had been entitled to draw on the reasons for refusal when reaching that conclusion, consistently with the Court of Appeal's earlier guidance in FR (Albania). The letter had also engaged directly with MB's history as a trafficking victim and the risk of re-trafficking, contrary to the Upper Tribunal's finding that this had been overlooked.

Turning to the central question of whether MB's claim was genuinely bound to fail, the court held that it was. Applying the established authorities on sufficiency of state protection and internal relocation, the court found that MB's personal circumstances, including his education, work experience, family contacts in Tirana and lack of any communication with his traffickers for almost three years, weighed against any real risk on return. The court accepted that MB's traffickers likely formed part of a wider criminal network, but held that this alone did not establish a case, beyond subjective assertion, that state protection would be insufficient or that internal relocation would not offer safety. Distinguishing MB's case from previous successful challenges where claimants had produced specific corroborating evidence of an ongoing threat, the court concluded that no tribunal properly applying the law could realistically reach a different outcome, and allowed the Home Secretary's appeal.

Having succeeded on that basis, the court did not need to resolve a separate ground concerning the propriety of the mandatory order requiring MB's return, leaving that question for a case in which it proves determinative.