Ahmadi & Anor, R (on the application of) v Secretary of State for the Home Department

A human rights claim may be certified as clearly unfounded only where no immigration judge, properly directing himself or herself, could find that removal would cause a disproportionate interference with article 8 rights.

The assessment of family life is not confined to the relationship already enjoyed. Where close blood ties, an existing supportive relationship and declared intentions to provide future care are present, the potential development of family life is relevant. A merely intended future relationship, without pre-existing family life, will not by itself engage article 8. The practical and medical effects of separation on both family members must inform the proportionality assessment.

Fawad Ahmadi, an illegal entrant who had previously claimed asylum in Germany and Norway, was liable to removal to Germany under third-country arrangements. The Secretary of State certified his article 8 claim as clearly unfounded, with the result that any appeal could be exercised only from outside the United Kingdom.

Fawad's younger brother, Zia, had refugee status and indefinite leave to remain in the United Kingdom. Zia suffered from severe schizophrenia. Medical evidence indicated that Fawad could provide practical and emotional support, encourage treatment and identify signs of relapse. After obtaining bail, Fawad lived with Zia for about five weeks.

Sullivan J dismissed both brothers' judicial review claims in [2005] EWHC 687 Admin, principally because their shared family life had been brief and precarious and professional services remained available to Zia. The central issue on appeal was whether the Secretary of State could maintain that Fawad's article 8 case was bound to fail before an immigration judge.

1. The appeal was allowed unanimously and the certification was quashed. The question was not how an immigration judge would ultimately decide the article 8 claim. It was whether every immigration judge, properly directing himself or herself, would be bound to reject it. Certification could stand only if no properly directed immigration judge could conclude that the circumstances were sufficiently exceptional to require respect for family life to prevail over ordinary immigration control.

2. The proportionality assessment required a fair balance between the individual's rights and the interests of the community. Lawful immigration control will be proportionate in all but a small minority of exceptional cases. The fact that the applicable regime was the Dublin arrangements, rather than an Immigration Rule, made no difference to that approach.

3. Sullivan J placed insufficient weight on the potential development of the brothers' family life. The assessment could not be confined to the short period during which they had already lived together. Their pre-existing blood ties, declared intention that Fawad would care for Zia, and some experience of that support were materially relevant. Article 8 may require a state to refrain from inhibiting the development of real family life, although a future intention alone, without pre-existing family life, will not suffice.

4. It was therefore impossible to conclude that the article 8 claim would inevitably fail. At the eventual appeal, updated evidence could establish the extent to which Fawad's support assisted Zia, prevented deterioration in his schizophrenia and reduced the risks associated with relapse. It could also clarify Fawad's ability to provide that support.

5. The court did not determine the correctness of Immigration Appeal Tribunal decisions said to restrict attention to the appellant's own position. An immigration judge considering this claim would nevertheless have to examine the practical and medical effects of the relationship and separation upon Zia. A factual assessment which ignored those effects would be incomplete.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The certification was quashed, and the respondent was ordered to pay the costs of the appeal and the proceedings below.

2. High Court, Administrative Court: Sullivan J dismissed both applications for judicial review in [2005] EWHC 687 Admin. He concluded that an adjudicator would be bound to reject the article 8 claims because the brothers' shared family life had been brief and precarious and professional support remained available to Zia.