Duka v Duka

For the purposes of section 65 of the Immigration and Asylum Act 1999, a decision need not be a formal decision made under a specific statutory provision. A decision refusing to treat further human-rights representations as a fresh claim, coupled with a positive statement that removal will occur, may relate to entitlement to enter or remain and therefore trigger a right of appeal. The one-stop procedure does not itself extinguish that right; certification is required where the statutory scheme makes certification the mechanism for preventing an appeal. A section 73(8) certificate cannot prevent an appeal that has already been validly brought. Relief may nevertheless be refused where the underlying human-rights claim has no real prospect of success and a section 73(2) certificate would properly be available.

The claimants, a married couple from Kosovo, challenged the Secretary of State’s refusal to treat further representations based on the wife’s dependent relationship with her brother as a fresh human-rights claim. They also challenged removal directions and a certificate issued under section 73 of the Immigration and Asylum Act 1999.

The claimants had lodged a notice of appeal under section 65 after the Secretary of State stated that they would be removed. The Secretary of State later certified the removal decision. The central issues were whether the earlier refusal and subsequent removal directions attracted a section 65 appeal, whether the section 73(8) certificate was valid, and whether relief should be granted.

1. The claim was dismissed. The section 73(8) certificate could not be upheld, but relief was refused because the claimants’ human-rights case had no conceivable real prospect of success and a section 73(2) certificate would properly be available.

2. Section 65 required a broad construction, consistently with R(Kariharan & Koneswaran) v Secretary of State [2002] EWCA Civ 1102. A removal decision plainly fell within the provision. The refusal of 19 December was more than a refusal to regard the representations as fresh: it confirmed that removal would take place. It was therefore a decision under the Immigration Acts relating to removal and to the claimants’ entitlement to remain.

3. The notice of appeal was consequently validly in being. In any event, the formal removal directions issued two days later created an appealable decision against which the existing appeal could operate. The one-stop procedure did not remove the right of appeal. Under section 73(8), certification prevented an appeal from being commenced, but did not terminate an appeal already launched.

4. The medical evidence did not materially alter the position. Applying the approach in Bensaid v the United Kingdom [2001] ECHR 44599/98, hardship, inferior treatment and possible deterioration were insufficient where treatment remained available, there was no real danger on return, and the asserted risk was speculative. The Secretary of State was entitled to conclude that removal would not breach either Convention.

5. The court rejected the suggestion that section 73 imposed a manifestly or clearly unfounded test. The statutory questions were whether one purpose of the claim was to delay removal and whether there was no other legitimate purpose. “Delay” contrasted with preventing removal. A legitimate purpose meant a good reason for pursuing the claim. Unless unlawful on ordinary judicial review principles, the Secretary of State’s assessment stood. A claim with a real chance of success might show that a material consideration had been overlooked, but that depended on the circumstances.

The judgment describes an earlier judicial review before Pitchford J, who rejected the claimants’ challenge to the refusal to treat the representations as a fresh claim. The present court dismissed the claim, while holding that the section 73(8) certificate was invalid.