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

A certificate that a human-rights allegation is manifestly unfounded may be maintained only where it is not arguable that an adjudicator would allow the appeal. In an Article 8 removal case, the claimant must show an arguable real risk of serious damage to mental health sufficient to constitute interference with Article 8(1). If interference is arguable, the court asks whether the Secretary of State’s proportionality assessment is outside the range of reasonable responses. Children’s best interests are important but not decisive. A policy requiring exceptional circumstances before allowing persons to rely on difficulties resulting from evasion of immigration control may lawfully inform the fair-balance assessment.

The claimant, a Turkish national of Kurdish origin, sought judicial review of the Secretary of State’s continued certificate under section 72(2)(a) of the Immigration and Asylum Act 1999. The certificate treated her Article 8 allegation as manifestly unfounded and enabled removal with her children to Germany under section 11. The claim focused on evidence that removal would cause serious psychiatric and psychological harm to two children. The central issues were whether an appeal to an adjudicator would arguably succeed, whether removal would interfere with Article 8(1), and, if so, whether the interference would be proportionate under Article 8(2).

1. The application was refused. The court held that the agreed test for maintaining a manifestly unfounded certificate was whether it was arguable that an appeal to an adjudicator would succeed: Ismet Ali [2003] EWHC 521 Admin.
2. The adjudicator’s Article 8(2) task, where facts were not in issue, was to consider whether the Secretary of State had struck a fair balance between effective immigration control and the claimant’s Article 8 rights. The relevant question was whether the decision was outside the range of reasonable responses. Mr Justice Hooper agreed with that approach, referring to Noruwa (OOTH 2345, 3 July 2001) and Baah [2002] UK IAT 05998.
3. Significant damage to mental health could engage Article 8, but the claimant had to show an arguable real risk of serious damage resulting from removal. The evidence made it arguable that two children suffered depression or anxiety and required psychiatric assistance. However, the evidence concerning possible brain damage, the severity and duration of depression, and the effect of treatment in Germany was speculative. The Secretary of State was entitled to conclude that the children would adapt once their future was settled. The claimant therefore failed to establish an arguable Article 8(1) interference.
4. Alternatively, any interference would not have been outside the range of reasonable responses under Article 8(2). The policy that persons who had evaded immigration control should rely on the consequences of that evasion only in the most exceptional circumstances was not arguably irrational. The children’s best interests were important, but not decisive.
5. Ahmadi [2002] EWHC 1897 Admin was distinguished because the material facts were not in dispute in the present case. The court concluded that the Secretary of State’s decision was lawful. No order for costs was sought.

Permission to seek judicial review had been granted by the Court of Appeal, but the claim was determined at first instance by the High Court. The application was refused. Permission to appeal was subsequently refused by Mr Justice Hooper, subject to an invitation that any renewed application be considered expeditiously.