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

For certification under section 73(8) of the Immigration and Asylum Act 1999, the central question is whether the application was in reality made simply as a delaying tactic. The provision does not establish a separate test requiring the underlying claim to be hopeless, manifestly unfounded, or capable of having been advanced earlier. Earlier omission, timing, new evidence and the apparent substance of the claim may all be relevant to the single inquiry. The statutory one-stop procedure does not itself exclude successive human-rights claims where the statutory conditions for certification are not met. In an Article 8 challenge, the court asks whether family life is engaged and, if so, whether the Secretary of State struck a fair balance within the range of reasonable responses. A certificate based on the wrong legal approach must be quashed.

The claimant, an Indian citizen, challenged the Secretary of State’s refusal of his Article 8 claim and a certificate under section 73(8) of the Immigration and Asylum Act 1999. His earlier appeal had been treated as abandoned after he failed to attend, although his marriage had been raised in the appeal materials. After the birth of his British child, he made a further human-rights application. The Secretary of State refused it, directed removal and certified the application on the basis that it was made to delay removal and had no other legitimate purpose.

The issues were whether the Article 8 decision was lawful and whether the section 73(8) certificate had been made according to the correct statutory test.

1. Article 8. The court first considered whether Article 8 family-life rights were engaged and, if so, whether the Secretary of State had struck a fair balance between those rights and the public interests in Article 8(2). The Secretary of State was entitled to conclude that the claimant’s wife could accompany him to India and that the child was sufficiently young to adapt. The alternative conclusion, that any interference caused by separation pending an entry-clearance application would be temporary and proportionate, was also within the range of reasonable responses. The human-rights challenge therefore failed.
2. Construction of section 73(8). Reading section 73(8) with sections 73(2), 76 and the one-stop provisions in sections 74–77 of the Immigration and Asylum Act 1999, the court held that “delay” means a pure tactical delay designed to postpone removal. The Secretary of State must ask one question: whether the application was in reality simply made as a delaying tactic. The inquiry is not divided into two independent limbs.
3. Relevant considerations may include the timing of the application, whether the claim could have been advanced earlier, whether new evidence exists, and whether the claim has substance. Earlier omission is relevant, but it is not by itself determinative. The court rejected the view that certification depends on the claim being hopeless or manifestly unfounded, and rejected the view that section 73(8) exists simply to enforce finality through the one-stop procedure.
4. Certificate. The Secretary of State had approached the matter on the basis that the application had no legitimate purpose because the arguments could have been made earlier. That was legally incorrect. Given the unexplained non-attendance at the earlier hearing, the subsequent birth of the child and the fact that the earlier human-rights claim had not been determined, the Secretary of State might have reached a different conclusion. The section 73(8) certificate was therefore quashed.
5. The application succeeded in relation to the certificate and failed in relation to the Article 8 decision. There was no order as to costs. Permission to appeal was granted because of the compelling reason that the Court of Appeal was due to consider R (Balamurali) v Secretary of State for the Home Department on related provisions.

First-instance judicial review. The judgment records that permission to appeal was granted to the Secretary of State because the Court of Appeal was due to consider the related decision in R (Balamurali) v Secretary of State for the Home Department.