Ay (R) v Secretary of State for the Home Department

At the permission stage of judicial review, the court determines only whether the proposed challenge is properly arguable. It does not decide whether the public authority actually erred.

Where removal itself is said potentially to breach Article 8, rather than treatment in the receiving country, it is properly arguable that a different Article 8 analysis may apply. Evidence concerning children’s mental health and development is a relevant consideration, even where it is less strong than evidence in an earlier case. Bail may be refused where the risk of absconding remains too great despite sureties and restrictions.

The applicant challenged the Secretary of State’s maintenance of a certificate and sought judicial review. The Court of Appeal was asked to determine applications concerning an adjournment, permission to apply for judicial review, amendment of the claim form, fresh evidence and bail.

The challenge relied in part on evidence from Dr Boyle concerning the mental health and development of the applicant’s three youngest children. The applicant also relied on a possible breach of Article 8 arising from removal itself. The central question was whether those grounds were properly arguable and should proceed to consideration in the High Court.

1. Permission and scope of decision. The application for an adjournment was refused, but permission to apply for judicial review was granted. The court emphasised that, at this stage, it was deciding only whether the alleged errors were properly arguable. It was not determining whether the Secretary of State had in fact erred.
2. Children’s mental health. The evidence concerning the three youngest children was weaker, taken in isolation, than the evidence in Bensaid v UK (2001) 33 EHRR 10. Nevertheless, the children’s mental health and mental development were relevant considerations. It was properly arguable that the Secretary of State had erred in maintaining the certificate in the light of Dr Boyle’s evidence.
3. Article 8 and removal. It was properly arguable that Ullah [2002] EWCA Civ 1856 might not apply where the alleged breach of Article 8 arose from the act of removal itself, rather than from treatment which the individuals would receive in the country of destination. Whether Article 8(1) was engaged was an issue properly to be considered by the courts.
4. Further procedure and bail. The case was directed to proceed promptly in the High Court. Any further evidence, including its admissibility, was left to that court. Bail was refused because the applicant’s history of absconding in the United Kingdom and Germany created too great a risk, notwithstanding proposed sureties and restrictions. The claim form could be amended, the application to adduce fresh evidence was adjourned, and the judicial review was ordered to be listed before the end of January 2003. Costs of the permission application were reserved.

• Court of Appeal (Civil Division): The case came from the High Court, Queen’s Bench Division, Administrative Court, where Mr Roger Henderson QC sat as a Deputy High Court Judge. The Court of Appeal refused an adjournment, granted permission to apply for judicial review, allowed amendment of the claim form, adjourned the fresh-evidence application and refused bail.