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

A family-links policy for safe third-country cases must be construed according to its purpose. An applicant is not automatically excluded because an earlier decision or certification had already been made. The policy concerns potential third-country cases considered over time and aims to reunite fragmented existing families.

The policy creates a broad discretion, not an entitlement. Family links are relevant but are not conclusive. In assessing proportionality under Article 8, the Secretary of State may give substantial weight to deception, an unmeritorious immigration history, the circumstances of the relationship and the availability of a comparatively short route to lawful family reunion. A claim may be certified as manifestly unfounded where it is so clearly without substance that an appeal would be bound to fail.

The claimant, a Sri Lankan national, challenged the Secretary of State’s decision to certify his Article 8 claim as manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999. He was liable to removal to Germany, which had previously accepted responsibility for his asylum claim.

The claimant relied on a family-links policy because his wife and child were in the United Kingdom. The Secretary of State applied a later version of the policy and concluded that the claimant was outside it because his wife had already received an initial asylum decision. The issues were whether that construction was lawful, whether the claimant would in any event have received a favourable exercise of discretion, and whether the Article 8 claim was manifestly unfounded.

1. Application dismissed. The Secretary of State’s construction of the family-links policy was unlawful. The expression “potential third country cases” could not be confined to cases in which no earlier removal or certification decision had been made. Such a construction would give the policy a very restricted ambit and would conflict with its purpose of reuniting members of an existing family unit fragmented for reasons beyond their control (paras 24–25).
2. The 1991 policy preserved a broad discretion. Its references to cases being considered “normally”, “broadly speaking” and to a “substantial area of discretion” showed that family links were not conclusive. The claimant was entitled to consideration under the policy, but the circumstances of his immigration history, deception, the timing and circumstances of the marriage, and the late disclosure of his wife and child meant that this was not a normal case. The Secretary of State would have exercised the discretion against him (paras 26–28).
3. There was genuine and subsisting family life and removal would interfere with it. The question under Article 8 was proportionality. A challenge to a manifestly unfounded certificate required consideration of whether the claim was so clearly without substance that an appeal to an adjudicator would be bound to fail (para 30).
4. Having regard to the claimant’s immigration history, the limited and temporary nature of the anticipated separation, the possibility of lawful entry clearance, and the alternative outcomes of the asylum claims, removal would have been proportionate. Even if the family-links policy had been considered at the proper time, the Secretary of State would have reached the same conclusion and was entitled to certify the claim (paras 31–34).
5. The court also rejected the submission that the claimant’s earlier judicial review application had been likely to succeed following Adan and Aitseguer [2001] 2 AC 477. The Secretary of State was entitled to treat that history as relevant (paras 35–38).

The judgment records an earlier judicial review application concerning removal to Germany. It was stood out pending Adan and Aitseguer [2001] 2 AC 477 and was later dismissed by consent on 22 January 2002. The present application was a separate first-instance judicial review and was refused.