McDower v Secretary of State for the Home Department

Permission to pursue judicial review may properly be refused where the underlying appeal would inevitably fail, even assuming that an immigration certificate was unlawfully issued. A partner application under rule 295D of the Immigration Rules cannot succeed where the applicant has remained in breach of the immigration laws. In an Article 8 case, delay in enforcing removal will rarely amount to truly exceptional circumstances making removal disproportionate, particularly where there is no evidence that the applicant protested against or sought to prevent the delay.

The claimant, a Jamaican national, challenged the Secretary of State’s certification of her case under section 96(1) of the Nationality, Immigration and Asylum Act 2002 and directions for her removal. She argued that she had not been notified of her earlier right of appeal and that her removal would interfere disproportionately with her Article 8 family life as the unmarried partner of a British citizen.

The court assumed, in the claimant’s favour, that the certificate might have been issued without power and that her relationship was genuine and subsisting. The central issue was whether setting aside the certificate could achieve any practical benefit, or whether the underlying appeals were bound to fail.

1. Application for permission refused. Even assuming that the Secretary of State lacked power to issue the certificate under section 96(1) of the Nationality, Immigration and Asylum Act 2002, the court could refuse permission where the appeals which would follow were bound to fail.
2. Any appeal against refusal of leave as the claimant’s unmarried partner would inevitably fail because rule 295D of the Immigration Rules required the applicant not to have remained in the United Kingdom in breach of the immigration laws. The claimant plainly could not satisfy that requirement.
3. Assuming that the claimant’s relationship was long-standing, genuine and subsisting, removal would interfere with her Article 8 family life. She would nevertheless have to establish truly exceptional circumstances rendering removal disproportionate to the legitimate objective of maintaining effective immigration control.
4. The Secretary of State’s delay in enforcing removal was incapable, on the facts assumed, of meeting that threshold. The delay had not deprived the claimant of any legitimate expectation concerning the handling of her application. The court adopted the guidance in MM (Serbia and Montenegro) that delay will rarely be sufficiently gross unless there is evidence that it was not acquiesced in, such as correspondence or other formal pressure directed to the Home Office.
5. Because any appeal on the remaining grounds was bound to fail, setting aside the certificate would be futile. The application for permission to proceed with judicial review was therefore refused. Costs were left for agreement, with provision for determination by the judge if agreement was not reached.

First-instance judicial review decision. No earlier judicial decision in the same proceedings is stated beyond the permission directions made by Collins J.