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

The Court of Appeal held that the Secretary of State was entitled to certify the appellant's Article 8 human rights allegation as manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999, thereby removing the appellant's right to an appeal under section 65. The court applied the standard in Thangarasa: the Secretary of State must be reasonably and conscientiously satisfied that the allegation must clearly fail. The decisive factors were that the appellant had entered the United Kingdom unlawfully, had a significant record of evasion and mendacity in his immigration history, and had married after arrival; the interference with family life was temporary and proportionate pending an entry‑clearance application abroad. The court accepted that whether the appellant would ultimately satisfy Immigration Rules requirements for spouse settlement (rules 281 and 6A) was properly a matter for an Entry Clearance Officer and that any refusal there could give rise to later Article 8 consideration and appeal rights. The certification was therefore lawful and not Wednesbury‑unreasonable.

Background and parties: The appellant, a Turkish national, entered the United Kingdom in April 1999 and made an untruthful asylum claim denying prior asylum applications in Germany. Germany accepted responsibility to examine the asylum claim under the Dublin Convention and the appellant's UK asylum claim was refused. After a history of absconding and legal proceedings, the appellant married a British citizen in May 2000 and had a child in July 2001. The Secretary of State issued removal directions and, when the appellant relied on Article 8 rights arising from his marriage, certified his Article 8 claim as manifestly unfounded by letter dated 17 April 2002. The appellant challenged that certification; the High Court (Roderick Evans J) dismissed the challenge on 23 October 2002. This appeal was heard in the Court of Appeal.

Relief sought and procedural posture: The appellant sought to challenge the Secretary of State's decision to certify his Article 8 allegation as manifestly unfounded, thereby preventing an appeal under section 65 of the 1999 Act. The appeal followed dismissal in the Administrative Court and came before the Court of Appeal.

Issues framed:

• Whether the Secretary of State was entitled to certify the Article 8 allegation as manifestly unfounded under section 72(2)(a) of the 1999 Act, applying the Thangarasa standard.
• Whether removal to Germany would be a disproportionate interference with the appellant's Article 8 rights in light of his marriage and family life in the United Kingdom.
• Whether it was necessary at the certification stage to determine whether the appellant would qualify for entry clearance for spouse settlement under Immigration Rules (notably rule 281 and rule 6A), or whether that qualification was properly for an Entry Clearance Officer to decide abroad.

Court's reasoning: The court accepted that removal would interfere with the appellant's family life but concluded that the interference was proportionate in light of the public interest in maintaining effective immigration control and deterring abuse of the asylum and entry‑clearance systems. The Secretary of State had expressly considered less intrusive means and concluded none would achieve the legitimate aims. The court emphasised that whether the appellant could ultimately satisfy the Immigration Rules was not material at the certification stage: that issue is for the Entry Clearance Officer and, if necessary, for later appeal and Article 8 consideration. The appellant's post‑arrival marriage and adverse immigration conduct meant no exceptional circumstances existed to displace the usual requirement to apply for entry clearance from abroad. Applying the Thangarasa test, the Secretary of State was entitled to be satisfied that the Article 8 allegation was plainly without substance and to certify it as manifestly unfounded.

Subsidiary findings and context: The Secretary of State accepted the marriage was genuine and subsisting and that a child existed; subsequently tendered evidence from the wife about practical difficulties was considered but did not alter the outcome. The court noted processing times for entry‑clearance applications abroad would be relatively short and that the Entry Clearance Officer has discretion to admit outside the strict requirements where appropriate. The court observed the remedy of permitting in‑country settlement after arrival in such circumstances should be rare and reserved for exceptional cases.

Appeal dismissed. The Court of Appeal held that the Secretary of State was entitled, on the material before him, to certify the appellant's Article 8 allegation as manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999. The interference with family life by returning the appellant to Germany pending an entry‑clearance application was proportionate given the public interest in maintaining immigration control, the appellant's immigration history and the availability of entry‑clearance processes and discretionary admission abroad. The Thangarasa standard was applied: the Secretary of State was reasonably and conscientiously satisfied that the allegation would clearly fail.

This is an appeal to the Court of Appeal from the High Court of Justice, Queen's Bench Division (Administrative Court) where Roderick Evans J dismissed the appellant's challenge on 23 October 2002. The Court of Appeal heard the appeal and dismissed it on 17 June 2003 (neutral citation [2003] EWCA Civ 765).