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

A human-rights claim is not manifestly unfounded merely because the Secretary of State considers removal proportionate or specialist facilities available abroad. The decision-maker must address the substance of the evidence and ask whether the claim must clearly fail.

Where removal creates a significant risk of very serious consequences, such as loss of the ability to communicate functionally in any spoken language, there may be an arguable engagement of Article 8 and an arguable case of disproportionality. The court need not determine the ultimate merits. It is sufficient that the claim is reasonably arguable, so that certification preventing an in-country appeal is unlawful.

The claimant challenged the Secretary of State’s decision to maintain certification of his human-rights claim as manifestly unfounded under section 72(2)(a) of the Immigration and Asylum Act 1999. Certification prevented an in-country appeal against removal to Germany.

The claimant relied on expert evidence that his deafness and specific language impairment meant that restarting his education in Germany could cause a major discontinuity and a significant risk that he would be unable to communicate functionally in any spoken language. The central issue was whether the Secretary of State had lawfully concluded that the Article 8 claim was manifestly unfounded.

1. The claim succeeded. The decision evidenced by the letter of 5 April 2005 was invalid insofar as it concluded that the claimant’s human-rights assertions were manifestly unfounded. The claimant consequently became entitled to pursue an in-country appeal.
2. The court proceeded on the basis that the case was a “foreign” Article 8 case. The relevant question was whether the evidence disclosed an arguable interference with private life and an arguable case that removal would be disproportionate.
3. The expert evidence, properly understood, concerned more than the availability of specialist facilities in Germany. It identified a significant risk arising from the need to restart an intensive language and educational process in a new language. The Secretary of State had misread or inadequately analysed that evidence.
4. A significant risk that the child would ultimately be unable to communicate functionally in any spoken language, coupled with the very serious consequences of that outcome, was sufficient to create an arguable Article 8 case. The court did not decide that the claimant would succeed before an adjudicator.
5. The Secretary of State had approached proportionality on the footing that there was no significant risk. He had therefore failed to address whether the evidence and the expert opinion were so weak that the claim had to clearly fail. The claim was not manifestly unarguable.
6. The decision did not determine the ultimate Article 8 merits. The question whether the case also had a “domestic” element, and the legal questions concerning the continuing effect of earlier certification, were left for determination where necessary.
7. The defendant was ordered to pay the claimant’s costs from 3 March onwards, subject to detailed assessment if not agreed.

First-instance judicial review. The judgment records earlier permission proceedings and hearings before Richards J, Munby J and Sullivan J, but no appeal from a prior final decision.