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

For permission to appeal, an applicant need show a real, non-fanciful prospect of success; the court need not decide that the appeal will succeed. In an Article 3 case based on the consequences of removal, the threshold is high and the circumstances must be exceptional or extreme. However, an adjudicator errs in law by inferring that financial support can be received after removal without evidence that it can be transferred in practical terms. Under Article 8, a continuing parent-child relationship is not ended merely by a period without contact. Removal may be disproportionate where family members cannot reasonably live together in the country of return, including because they face a real risk of danger there.

The claimant, a Sudanese national, challenged the Immigration Appeal Tribunal’s refusal of permission to appeal against an adjudicator’s dismissal of her asylum and human-rights claims. Permission to pursue judicial review was granted on Articles 3 and 8 of the Convention. The claimant lived with her daughter and five grandchildren in the United Kingdom and maintained contact with other United Kingdom-based children and stepchildren. The central issues were whether the adjudicator had properly assessed the practical availability of financial support in Sudan and whether removal would unlawfully interfere with family life.

1. Permission to appeal. The claimant was required to show a real, rather than fanciful, prospect that an appeal would succeed. The court was not required to determine the ultimate merits of that appeal.
2. Article 3. The claim was weak because Article 3 has a high threshold where the alleged ill-treatment arises from conditions on return rather than treatment inflicted by the removing or receiving state. Authorities indicated that an exceptional or extreme case would generally be required. Nevertheless, the adjudicator had made an improper jump of reasoning. Evidence that the claimant’s children would be willing to support her did not establish that money could be transmitted to her in Sudan. The evidence left it materially uncertain whether she could open a Sudanese bank account or otherwise receive funds. That error of law made the Article 3 ground fairly arguable.
3. Article 8. The claimant’s family life in the United Kingdom was strongly arguable. A period without contact did not, by itself, sever the normal parent-child tie. The evidence supported continuing family relationships with her United Kingdom-based children, grandchildren and stepchildren. The principle that removal will not necessarily breach Article 8 where family members can live together in the country of origin did not defeat the claim at the permission stage, because the United Kingdom family members might face a real risk of danger if returned to Sudan. The issue was therefore fairly arguable.
4. The refusal of permission dated 4 September 2003 was quashed. The Immigration Appeal Tribunal was expected to determine the renewed permission application. Costs were ordered to be subject to detailed assessment and paid so as to be reimbursed to the Legal Services Commission.

1. Adjudicator: dismissed the claimant’s appeals against refusal of asylum and human-rights claims.
2. Immigration Appeal Tribunal: on 4 September 2003 refused permission to appeal.
3. High Court (Administrative Court): granted judicial review and quashed the refusal of permission, limited to Articles 3 and 8.