Bardiqi, R (on the application of) v Secretary of State for the Home Department

A certificate that a human-rights claim is manifestly unfounded requires more than a view that the claim is unlikely to succeed. The Secretary of State must be satisfied that the claim is bound to fail before an adjudicator. That assessment must engage with material expert evidence and must not mischaracterise the evidence. Where the assessment of interference under Article 8(1) is fundamentally flawed, the consequent proportionality assessment under Article 8(2) is also undermined. The breadth of the Secretary of State’s Article 8(2) discretion does not remove the statutory requirement to apply the high certification threshold.

The claimant, an Albanian from Kosovo, challenged the Secretary of State’s decisions certifying his family’s human-rights claims as manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999. The family had lived in the United Kingdom for several years while arrangements were made for their return to Germany under the Dublin Convention.

Further representations relied on the children’s schooling, the family’s community ties, and expert evidence concerning the psychological effect of removal on the claimant’s ten-year-old son, who had previously suffered from PTSD. The central issue was whether, in light of that evidence, the Secretary of State could properly conclude that the Article 8 claim was bound to fail.

1. Decision quashed. The decisions maintained in the letters of 6 March and 11 July 2003 were quashed. The court did not decide that the Article 8 claim would succeed, but held that it could not be certified as bound to fail.
2. Under section 72(2)(a) of the Immigration and Asylum Act 1999, the certification threshold is high. The Secretary of State must be satisfied that the claim would be bound to fail before an adjudicator. It is insufficient that the claim appears weak or likely to fail (paras [20], [38]-[40]).
3. The Secretary of State materially mischaracterised Ms Saddik’s expert report. The report addressed the likely psychological effect of removal from the United Kingdom, including a high risk of relapse into PTSD. It did not concern the availability of treatment in Germany. Treating that evidence as speculative, without contrary psychological or psychiatric evidence, was not a conclusion that an adjudicator would necessarily have to reach (paras [36]-[40]).
4. The error concerning Article 8(1) infected the Article 8(2) assessment. The Secretary of State’s conclusion that removal would be merely upsetting was materially different from the expert evidence of a high risk of relapse and psychological damage. Since the proportionality assessment relied at least in part on the degree of interference, it also fell when the Article 8(1) assessment was unsustainable (paras [37]-[39]).
5. The court also observed that the family’s circumstances were distinguishable in material respects from Zeqiri, including the presence of children and potentially more extensive community ties. The claimant’s unlawful travel was a matter capable of attracting considerable weight, but it did not preclude consideration of the concerns then surrounding the return of Kosovan refugees to Germany (para [31]).

Not stated in the judgment.