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

For certification under section 94(2) of the Nationality Immigration and Asylum Act 2002, the claim must be so wholly lacking in substance that an appeal would be bound to fail. The same demanding test applies when the High Court reviews the certification.

In an Article 8 case, proportionality must be assessed by considering the nature and gravity of the interference, the interest protected, the legitimate aim of immigration control and the particular facts. A temporary separation may be material, but its effect must be assessed realistically. A case involving serious health risks from removal may be distinguished from one involving temporary separation where the person remaining in the United Kingdom can obtain alternative care.

The claimant, a Thai national who had overstayed her leave, sought judicial review of successive decisions refusing her leave to remain and proposing her removal. She relied on her relationship and engagement to an elderly British citizen, arguing that removal would breach Article 8 of the European Convention on Human Rights.

The Secretary of State accepted that the claimant’s partner could not practically travel to Thailand because of his age and medical conditions. He nevertheless considered that any interference would be temporary because the claimant could apply for entry clearance as a fiancée. He certified the Article 8 claim as manifestly unfounded under section 94(2) of the Nationality Immigration and Asylum Act 2002. The central issue was whether an appeal to the Tribunal was bound to fail.

1. Certification test. The application for judicial review was dismissed. Following R (on the application of Bagdanavicius) v Secretary of State for the Home Department [2003] EWCA Civ 1605 and Thangarasa and Yogathas v Secretary of State for the Home Department [2002] UKHL 36, certification required the Secretary of State to be satisfied that the claim was so wholly lacking in substance that an appeal would be bound to fail. The High Court had to apply effectively the same test on judicial review. See paras [6]–[8].
2. Article 8 proportionality. The Tribunal would have to assess proportionality for itself, considering the nature of the interference, the interest protected and whether the interference was proportionate to the legitimate aim of maintaining immigration control. The likely duration of the separation was relevant to the gravity of the interference. See paras [9]–[11].
3. Application to the facts. Mukarkar v Secretary of State for the Home Department [2006] EWCA Civ 1045 was materially different. That case involved removal of an elderly person whose serious medical condition and lack of family support created risks engaging Articles 3 and 8. Here, removal did not endanger the claimant’s health, her partner’s care needs could be met elsewhere temporarily, and the proposed separation was expected to be relatively short. Emotional hardship and uncertainty did not make the Article 8 claim arguable on these facts. See paras [12]–[15].
4. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.

This was a first-instance judicial review claim. Permission was granted by Silber J at an oral hearing on 30 January 2006. The Administrative Court dismissed the claim and ordered the claimant to pay the defendant’s costs.