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

In an Article 8 immigration case, the requirement that an applicant leave the United Kingdom to seek entry clearance is compatible with family life rights unless the circumstances are truly exceptional and proportionality requires an in-country outcome. Immigration history and the public interest in effective immigration control are relevant to that assessment.

For certification under section 94 of the Nationality Immigration and Asylum Act 2002, the question is whether the human-rights claim is clearly unfounded. A state need not guarantee complete protection against isolated or random harm. The practical standard is whether it operates a sufficient system of protection, having regard to its duty towards all nationals.

The claimant, a Jamaican national who had entered the United Kingdom as a visitor and overstayed, sought judicial review of decisions refusing him leave to remain on the basis of his marriage to a settled person and certifying his human-rights claim as clearly unfounded.

He relied on his wife’s mental illness, their two children, Article 8 family life, and an alleged risk of an unfair trial and extra-judicial harm from Jamaican police officers. The Secretary of State reconsidered the matter in several later decision letters, including after receiving evidence about the proposed charges, medical conditions, alleged threats, and protection available in Jamaica. The central issues were whether the decisions were unlawful or disproportionate and whether certification under section 94 was justified.

1. The application for judicial review was dismissed. The first decision was lawful. The claimant fell outside policy DP3/96 because his marriage had not existed for two years before enforcement action. The Secretary of State nevertheless considered whether compassionate circumstances justified an exception and acted rationally on the material then available.

2. The later decisions lawfully addressed Article 8. The Secretary of State was entitled to require the claimant and his family to return to Jamaica and make an application for entry clearance. The claimant’s unlawful immigration history, the need for effective immigration control, and the avoidance of an in-country route which would allow him to jump the queue were relevant public-interest considerations.

3. The case was not shown to be so exceptional that proportionality required departure from the ordinary entry-clearance process. The evidence that the claimant’s wife was vulnerable, that she had previously travelled to Jamaica, and that medical facilities were available there did not compel a different conclusion.

4. There was no sufficient basis for concluding that removal would expose the claimant to an unfair trial or execution. The Jamaican Director of Public Prosecutions had indicated that only charges not carrying the death penalty would be pursued.

5. Applying Horvath v Secretary of State for the Home Department [2001] 1 AC 485, the relevant protection standard was practical rather than an assurance eliminating every risk. The Secretary of State was entitled to conclude that Jamaica had systems for investigating and prosecuting police misconduct and that sufficient protection would be available.

6. The certification under section 94 was not impugned. The Secretary of State had considered the material placed before him and was entitled to certify the human-rights claim as clearly unfounded. There was no order for costs, subject to the public funding assessment.