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

For certification purposes, an Article 8 claim is manifestly unfounded where the Secretary of State can reasonably and conscientiously conclude that it is clearly bound to fail, including on the Article 8(2) balance. The assessment requires anxious scrutiny and remains fact-sensitive. The availability of a lawful route to seek entry clearance is highly material: an applicant ordinarily cannot avoid that route merely because satisfying the ordinary requirements may be difficult. Exceptional circumstances must be shown before family dependence, anticipated hardship in a safe third country, or temporary separation can displace that conclusion. Immigration history and the public interest in effective immigration control may properly form part of the assessment.

The claimant, a Somali national, sought judicial review of the Secretary of State’s certification under section 72(2)(a) of the Immigration and Asylum Act 1999. The certification concerned his allegation that removal to the Netherlands, which had accepted responsibility for his asylum claim under the Dublin Convention, would breach Article 8 of the European Convention on Human Rights.

After the certification, the claimant relied on his Islamic and subsequent civil marriage to a Somali woman with humanitarian leave to remain in the United Kingdom. He argued that their mutual emotional dependence, his anticipated destitution in the Netherlands, the prospective period of separation, and the possible difficulty of obtaining entry clearance made the Article 8 claim at least arguable. The central issue was whether the Secretary of State was entitled to regard the claim as manifestly unfounded.

1. Certification threshold. The statutory threshold is high. The Secretary of State must be reasonably and conscientiously satisfied that the human-rights allegation would clearly fail, and any appeal would be bound to fail. The court must examine the decision with anxious scrutiny.
2. Family-links policy and discretion. The Secretary of State did not fetter his discretion. The decision letter considered the relationship, asserted mutual dependence, the absence of comparable support elsewhere, the claimant’s wife’s humanitarian leave, state support, and the claimant’s immigration history. The evidence disclosed no exceptional features taking the case outside the common, though difficult, circumstances of separated asylum seekers.
3. Conditions in the Netherlands. The evidence did not establish a real risk of treatment reaching the necessary severe level of degradation, nor sufficient harshness which had been overlooked. The claimant could make a fresh asylum claim in the Netherlands on the identity and account advanced in the United Kingdom. The Secretary of State was entitled to consider the practical support and legal assistance potentially available there, together with the claimant’s previous receipt of accommodation and subsistence.
4. Entry clearance and separation. The approach in Ekinci was directly relevant. The availability of an entry-clearance application was highly material. It would be anomalous to excuse an applicant from applying merely because he might have difficulty satisfying the ordinary requirements. The Article 8 assessment remained fact-sensitive, but no exceptional circumstances were shown here.
5. Disposition. The certification was unimpeachable. The claim was dismissed, and the interim injunction restraining removal consequently lapsed.