Ala v Secretary of State for the Home Department

For certification purposes, a human-rights appeal is manifestly unfounded only where it is so clearly without substance that it is bound to fail. On judicial review, an arguable Article 8 case ordinarily means that certification was unavailable.

Where facts are disputed, an adjudicator may reconsider them. Where facts are undisputed, the adjudicator applies the Article 8 proportionality test but does not substitute a preferred view merely because another balance could reasonably have been struck. The question is whether the Secretary of State’s decision fell outside the range of reasonable responses. The consequences of delay are a relevant factor in striking that balance.

The claimant, a Kosovan national, challenged the Secretary of State’s certification of his Article 8 human-rights claim as manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999. Removal to Germany was proposed under the Dublin Convention. The claimant relied on his marriage to a British citizen, family circumstances, health concerns and delay in dealing with his asylum claim.

The central issue was the jurisdiction of an adjudicator hearing an appeal under section 65 of the 1999 Act. In particular, the court had to decide whether the adjudicator could substitute his own proportionality assessment, or only determine whether the Secretary of State’s decision fell outside the range of reasonable responses.

1. Certification threshold. Before certifying an Article 8 claim under section 72(2)(a) of the Immigration and Asylum Act 1999, the Secretary of State must conclude that the allegation is so clearly without substance that the appeal is bound to fail. On judicial review, once the claimant shows an arguable human-rights appeal, it follows that no reasonable Secretary of State could properly conclude that it was bound to fail.
2. Adjudicator’s jurisdiction. Sections 65(2) to (5) confer jurisdiction to determine whether the Secretary of State acted in breach of human rights. Paragraph 21(3) of Schedule 4 permits the adjudicator to review factual determinations. A disputed factual issue which could affect the Article 8 conclusion therefore prevents the appeal from being treated as bound to fail.
3. Undisputed facts and proportionality. Where there is no factual dispute, the adjudicator must ask whether the Secretary of State struck a fair balance between effective immigration control and the claimant’s Article 8 rights. The same proportionality test applies, but the Convention itself permits a discretionary area of judgment. A decision is unlawful only if it falls outside the range of reasonable responses. The adjudicator is not exercising the statutory discretion referred to in paragraph 21(1)(b) of Schedule 4 and is not required to substitute a different view merely because one could reasonably have been reached.
4. The Secretary of State was entitled to attach substantial weight to effective immigration control and to conclude that removal pending determination of the asylum claim did not necessarily prevent removal after an unsuccessful claim. However, the consequences of the delay in dealing with the claimant’s case were a relevant factor. The Secretary of State had apparently failed to consider them.
5. It was therefore arguable that the decision fell outside the range of reasonable responses and that an adjudicator might allow the section 65 appeal. The appeal was not bound to fail. The Secretary of State was not entitled to certify it under section 72(2)(a). The application succeeded.

First-instance judicial review application. The court quashed the certification decision under section 72(2)(a) of the Immigration and Asylum Act 1999.