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

When reviewing a certificate that a human rights claim is clearly unfounded, the court must predict how an adjudicator might reasonably determine the claim. In an Article 8 removal case, it should apply the five questions identified in [2004] UKHL 27.

Article 15 of Council Regulation 343/2003 regulates relations between Member States. It does not confer a freestanding substantive right on an asylum seeker to require a particular state to examine the claim.

Removal pursuant to a lawful immigration policy will ordinarily pursue a legitimate aim. It will be disproportionate only in a small minority of exceptional cases, assessed individually.

The appellant, a Somali asylum seeker, first applied for asylum in Italy and later made a second application in the United Kingdom. Italy and the United Kingdom agreed that Italy was responsible for examining the claim under Council Regulation 343/2003.

The Secretary of State certified under section 93 of the Nationality, Immigration & Asylum Act 2002 that her Article 8 claim was clearly unfounded. She maintained that she was a minor living with and dependent upon a cousin in the United Kingdom. Wilson J dismissed her application for judicial review.

The appeal concerned whether a hypothetical adjudicator might reasonably find that removal to Italy unlawfully or disproportionately interfered with family life, including whether Article 15 of the Regulation gave the appellant an enforceable right to have her asylum claim examined in the United Kingdom.

1. Appeal dismissed. Maurice Kay LJ delivered the judgment, with which Neuberger and Buxton LJJ agreed. Although Wilson J had approached the case as a primary evaluation of the human rights claim, the correct approach was predictive. The reviewing court had to consider how an appeal might reasonably be decided by an adjudicator and apply the five Article 8 questions stated in Razgar [2004] UKHL 27.
2. A hypothetical adjudicator might reasonably accept the medical evidence that the appellant was still a minor and find that family life existed with her cousin. The evidence before the Secretary of State had been extremely weak, but the subsequent period of cohabitation could support that conclusion. The court also accepted, generously, that an adjudicator might find that removal attained the minimum severity required to engage Article 8.
3. Article 15 of Council Regulation 343/2003 did not confer a freestanding substantive right upon an individual asylum seeker. It regulated relations between Member States. In this case it permitted the United Kingdom authorities to examine the claim following a request from Italy, but both states had agreed that Italy should process it. The appellant could make representations inviting Italy to request a transfer, but Article 15 gave her no power to require one. Removal therefore involved no contravention of Article 15 and would be in accordance with the law.
4. Removal in pursuance of lawful immigration control would further a legitimate aim. Such a decision will be proportionate except in a small minority of exceptional cases. The contemplated destination was Italy, where the asylum claim would be considered under systems giving effect to the Refugee Convention and the ECHR. The family life was of comparatively short duration, and the appellant's minority was nearly at an end. No compelling feature could reasonably make the case exceptional or render removal disproportionate.
5. The challenge to the clearly unfounded certificate therefore failed. The Court of Appeal reached the same result as Wilson J, although by applying the predictive approach required by Razgar.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the result below while differing from Wilson J's method of analysis: [2005] EWCA Civ 546.
2. High Court: On 18 November 2004 Wilson J dismissed the application for judicial review of the Secretary of State's clearly unfounded certificate. No citation is stated in the judgment.