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

For certification purposes, an Article 8 claim falling outside the Immigration Rules is arguable only where the facts may be truly exceptional and proportionality could require a favourable outcome. The effect of removal on dependent family members may be relevant, but the focus remains on the claimant’s own family life and the interference actually established. A short and precarious period of family life will rarely meet that threshold.

Serious mental illness in a family member does not, without more, make removal contrary to Articles 3 or 8 where adequate statutory and social-care services remain available, including compulsory hospital treatment where necessary.

The first claimant, an Afghan national who had claimed asylum in Germany and Norway, challenged certification of his Article 8 claim as clearly unfounded and his proposed removal to Germany under the Dublin Convention. His brother, the second claimant, had refugee status and indefinite leave to remain in the United Kingdom, but suffered from severe schizophrenia.

The brothers had lived together only since the first claimant’s release on bail several weeks before the hearing. The second claimant was joined as a claimant, alleging that removal of his brother would breach his own rights under Articles 3 and 8. The central issues were whether the first claimant’s Article 8 claim was bound to fail before an adjudicator and whether removal would breach the second claimant’s Convention rights.

1. Certification. The court applied the test identified in Huang, Abu-Qulbain & Kashmiri v The Secretary of State for the Home Department [2005] EWCA Civ 105. A claimant outside the Immigration Rules must show that the case may be so exceptional that proportionality requires a favourable outcome notwithstanding failure under the Rules. The case must be truly exceptional.
2. The impact of removal on the second claimant was a relevant consideration in assessing the first claimant’s Article 8 claim. However, the focus remained on the first claimant’s family life. Any family life between the brothers in the United Kingdom had existed for only a few weeks and was precarious, because the first claimant knew that removal to Germany was intended. Even taking account of the second claimant’s serious illness and dependency, the claim was not arguably truly exceptional. The Secretary of State was therefore entitled to certify it as bound to fail.
3. The second claimant’s Article 8 claim. The relevant question was whether removal would disproportionately interfere with the family life actually enjoyed, rather than family life in the abstract. Given the brevity and precariousness of the relationship in the United Kingdom, removal would not breach Article 8.
4. Articles 3 and 8 private life. The second claimant’s suffering would not cross the Article 3 threshold. Mental-health and social-care authorities could provide supported accommodation, and hospital admission under the Mental Health Act 1983 remained available if his condition deteriorated and compulsory care became necessary. The existence of those services meant that removal would not expose him to treatment contrary to Article 3 or violate his moral integrity under Article 8.
5. The judicial-review application was dismissed. Permission to appeal was refused because the case was fact-dependent and had no real prospect of success. A detailed assessment of costs was permitted.

The judgment describes the procedural history of this first-instance judicial review:

• Permission was initially refused on the papers in October 2004.
• Following an oral renewal and further adjournments, permission to apply for judicial review was granted on 14 February 2005.
• High Court (Administrative Court): the application was dismissed and permission to appeal refused.