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

A certificate under section 73(8) of the Immigration and Asylum Act 1999 cannot properly be issued merely because an applicant failed to use the one-stop procedure. The statutory scheme contains more specific certification powers for claims that could have been raised earlier or have already been decided. A purpose is legitimate where the applicant genuinely seeks consideration of an outstanding or previously unconsidered issue. The certificate was therefore quashed.

The claimant, an unsuccessful asylum-seeker from Kosovo, sought judicial review after the Secretary of State certified under section 73(8) of the Immigration and Asylum Act 1999 that his request for exceptional leave to remain had been made to delay removal and had no other legitimate purpose. The request relied on his relationship with his partner and on the availability of psychiatric treatment in Kosovo. The original asylum appeal had addressed the Article 8 issue but not the Article 3 medical issue. The central question was whether the section 73(8) certificate was lawfully issued.

1. Certificate quashed. The certificate was issued because the Secretary of State considered that the claimant had failed to comply with the one-stop procedure. That was not the statutory question under section 73(8).
2. The statutory scheme provides specific safeguards where a later human-rights claim could reasonably have been raised in the original appeal or has already been considered. Sections 73(2) and 73(5) were directed to those situations. Section 73(8) was not intended to be used as a substitute for those provisions.
3. The request had legitimate purposes on any view. The claimant sought consideration of the relationship which the adjudicator had invited the Secretary of State to consider, and of the medical-treatment issue which had not previously been considered. The Secretary of State could not rationally conclude that the request was made only to postpone removal.
4. The court left open the general meaning of “legitimate purpose” in section 73(8)(b). Earlier decisions had taken different approaches, including whether an unarguable case could have a legitimate purpose and whether the inquiry concerned the purpose of the claim rather than its merits.
5. The certificate’s quashing meant that section 73(9) did not prevent an appeal under section 65(1), insofar as the appeal alleged a breach of human rights. The court expressed no final view on whether later certificates could be issued under sections 73(2) or 73(5).
6. Obiter, the adjudicator’s original determination had already decided the Article 8 claim adversely to the claimant. The adjudicator had addressed whether the relationship constituted family life and whether immigration-policy considerations justified interference under Article 8(2).

First-instance judicial review proceedings. The judgment states that permission to proceed was granted by Wall J after the claim was amended, but gives no earlier reported decision.