A v Secretary of State for the Home Department

Certification under section 72(2)(a) of the Immigration and Asylum Act 1999 is lawful only where the human-rights allegation is bound to fail. The threshold is high. A factual dispute about matters such as age and identity may prevent certification on the basis that an adjudicator must reject the claimant’s account. However, even if the claimant’s account is accepted, certification may be justified where removal would be a proportionate interference with family life, having regard to effective immigration control, deception used to enter the United Kingdom, and the Secretary of State’s significant margin of judgment. The possibility that entry clearance may later be refused does not, at the certification stage, prevent the allegation being manifestly unfounded.

The claimant, a Somali national, sought judicial review of the Secretary of State’s certification of her Article 8 claim as manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999. Her asylum claim had separately been certified under section 11(2)(a) on the basis that Italy was responsible under the Dublin Convention.

She claimed that removal to Italy would interfere with family life with her mother, a recognised refugee in the United Kingdom. Her age and identity were disputed, although DNA evidence established that the alleged mother was her mother. The central issue was whether an adjudicator could find an Article 8 breach, or whether the claim was bound to fail.

1. The application for judicial review was dismissed. The claimant’s Article 8 allegation was properly certified as manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999.
2. The governing question was whether the Secretary of State could rationally conclude that no adjudicator could find an Article 8 breach. Following Razgar v Secretary of State for the Home Department [2003] EWCA Civ 840, the allegation had to be bound to fail. That was a very high threshold.
3. The Secretary of State could not reasonably conclude that an adjudicator would necessarily reject the claimant’s account of her age and identity. There was a genuine factual dispute, supported to some extent by the DNA evidence and witness statements. That ground alone therefore did not justify certification.
4. Nevertheless, certification was justified on the alternative ground. Even assuming that the claimant’s account of her age and identity was accepted, the Secretary of State was entitled to conclude that removal to Italy would not breach Article 8. The assessment required consideration of proportionality, with considerable deference to the importance of maintaining firm and effective immigration control.
5. The claimant had entered the United Kingdom by deception and had used a series of false accounts to circumvent entry controls. The absence of identification documents in the claimed identity was substantially self-created. The possibility that she might fail to obtain entry clearance was a matter for any later entry-clearance application, not a reason why the Article 8 claim could not be certified: Ekinci v Secretary of State for the Home Department [2003] EWCA Civ 765.
6. The family-links policy concerned whether the asylum claim should be considered substantively in the United Kingdom. It did not determine the separate section 72 certification issue. The circumstances did not amount to the exceptional case required to displace the weight accorded to immigration control.

The court refused permission to appeal. Costs were ordered in the usual form, enforceable only with the court’s permission if the claimant was publicly funded.

The judgment is a first-instance judicial review. The claimant’s asylum claim had previously been certified under section 11(2)(a) of the Immigration and Asylum Act 1999, but that decision was not challenged. The court refused permission to appeal to the Court of Appeal.