Vasilenko & Anor v Secretary of State for the Home Department

At the permission stage, a challenge to removal is arguable where nationality or statelessness has not been properly determined, or where the decision-maker has not demonstrated consideration of Convention rights. In an Article 8 case, the decision-maker must address whether removal is necessary and proportionate to the legitimate aim of maintaining effective immigration control. A solicitor’s assertion does not conclusively determine nationality. The rationality of requiring a person to leave the United Kingdom to complete citizenship examinations may also be examined. Permission to appeal was granted and the judicial review was directed to proceed.

The claimants were a married couple, both aged 64, of Russian ethnic origin and born in Latvia. They came to the United Kingdom in 1997 and their asylum applications were refused in 2000. After Latvia joined the European Union, the Home Office initially informed them that they could remain, but later reconsidered their position and issued removal decisions after their solicitor asserted that they were stateless.

Walker J refused permission to seek judicial review. The claimants appealed, arguing that their Latvian citizenship or statelessness required determination and that removal would breach Article 8. The central issue was whether those grounds were sufficiently arguable.

The Court of Appeal granted the application for permission to appeal. It held that the proposed judicial-review grounds were arguable and directed that the judicial review proceed in the Administrative Court.

1. Status and nationality. The solicitor’s apparent assertion that the claimants were not Latvian citizens was not conclusive. Their status required an actual decision. If they were Latvian citizens, they might be entitled to remain in the United Kingdom as European Union citizens. If they were stateless, that status was relevant to their right to remain.
2. Article 8. The claimants’ age, nine years’ residence, employment, property and family connection in the United Kingdom gave rise to an arguable Article 8 issue. The Home Office decision letter did not appear to address whether requiring them to return to Latvia was necessary and proportionate to the legitimate aim of maintaining an effective system of immigration control.
3. Rationality. Lord Justice Jacob added that, independently of the question of statelessness, the rationality of requiring the claimants to return to Latvia to take language, constitutional and history examinations for full citizenship was questionable, particularly if success would enable them to return to the United Kingdom as European Union citizens.
4. The permission was granted pursuant to CPR Part 52 rule 15(3). The stay on removal was continued pending completion of the judicial-review proceedings, and the matter was referred for further directions.

• Court of Appeal (Civil Division) — On 26 April 2006, permission to appeal was granted and the judicial review was directed to proceed: [2006] EWCA Civ 729.
• Administrative Court — Walker J had refused permission to seek judicial review of the removal decisions.