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

Certification as clearly or manifestly unfounded involves a screening process, not a full merits determination. The Secretary of State must consider the claim and supporting material carefully, but may certify where reasonably and conscientiously satisfied that the human-rights allegation would clearly fail.

Article 8 may exceptionally be engaged by the foreseeable health consequences of removal, even where Article 3 is not breached. The threshold is high and requires a very grave state of affairs amounting to a flagrant or fundamental breach of the right. Medical evidence based substantially on an applicant’s unverified account may be insufficient. The claim was dismissed.

The claimant, an Iranian national, challenged the Secretary of State’s decision to certify his human-rights claim under section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002 as clearly unfounded. Germany had agreed to readmit him under the Dublin Regulations to determine his asylum claim.

He argued that removal to Germany would create a real risk that his wife, who remained in the United Kingdom with their children, would seriously harm herself or commit suicide, thereby engaging Article 8. The wife had previously made an overdose attempt and relied on psychiatric evidence. An adjudicator had rejected her asylum and human-rights appeals, including the asserted risk of suicide.

The central issue was whether the evidence made the Article 8 claim sufficiently arguable to invalidate certification.

1. The claim was dismissed. The Secretary of State was entitled to certify the claimant’s human-rights claim as clearly unfounded.
2. The guidance in Y [2002] UKHL 36 established that certification is a screening exercise. It does not require a full merits review. The decision-maker must consider the allegation, its grounds and supporting material, and may certify where the claim is so clearly without substance that it would be bound to fail.
3. Under Razgar [2004] UKHL 27, Article 8 can in principle be engaged by the foreseeable health consequences of removal even where Article 3 is not violated. The threshold is high. The case must involve a very grave state of affairs amounting to a flagrant or fundamental breach, effectively a complete denial of Article 8 rights.
4. The claimant’s case depended principally on the effect of his removal on his wife. The wife’s earlier appeal had been dismissed after the adjudicator rejected her credibility and concluded that the evidence did not establish a real risk of suicide. Those findings materially weakened the psychiatric report, which had been based largely on the wife’s account and had been prepared without the level of independent corroboration capable of overcoming those findings.
5. The possible temporary nature of the separation, including the possibility of the family later joining the claimant in Germany, also supported the conclusion that the exceptional Article 8 threshold was not met. The medical evidence did not make the claim one which an adjudicator could arguably be required to uphold.