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

A safe third-country certificate is “issued” for transitional purposes when it is served, where that meaning is established by a closely related transitional instrument concerning the same statutory scheme. A certificate prepared and signed before repeal, but served afterwards, is ineffective. A later certificate preventing an in-country appeal applies to an appeal already initiated because bringing an appeal is a continuing process. A human-rights claim is clearly unfounded where, after conscientious consideration, it is bound to fail on every legitimate view of the facts and law. Article 8 proportionality must be assessed in the light of the receiving country’s arrangements and the public interest in consistent immigration control.

The claimant, a Somali national, claimed asylum in the United Kingdom after previously claiming asylum in Italy. The Secretary of State signed a safe third-country certificate in March 2004, but it was not served until October, after the relevant legislation had been repealed. A further certificate was issued under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

The claimant sought judicial review, arguing that the first certificate was ineffective, that the second could not stop an appeal already commenced, and that removal to Italy would breach article 8 of the European Convention on Human Rights. The issues were the meaning of “issued”, the effect of the later certificate on an existing appeal, and whether the human-rights claim was clearly unfounded.

1. First certificate. The March 2004 certificate was a nullity. “Issue” has no single consistent meaning and may range from creation of a document to its delivery or service. The transitional provisions in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (Commencement No 1) Order 2004 and the earlier transitional order were in pari materia. The earlier order expressly treated a certificate as issued when sent or delivered. That meaning applied to the later order. Since the certificate was not served before 1 October 2004, it was not saved from repeal. (paras [22]-[29])
2. Recertification. The later certificate under Schedule 3, Part 2 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 prevented an in-country appeal. The statutory prohibition on bringing an appeal is directed to an ongoing process, not merely to the moment when a notice of appeal is lodged. The certificate therefore stopped any existing appeal. (paras [30]-[34])
3. Family Ties Policy. The policy was discretionary and intended for rare cases involving compelling evidence of dependency and family fragmentation. The Secretary of State’s view that it did not apply to the claimant could not be criticised in public-law terms. (paras [35]-[36])
4. Clearly unfounded claim. Applying R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36, R (L) v Secretary of State for the Home Department [2003] EWCA Civ 25 and R (Atkinson) v Secretary of State for the Home Department [2004] EWCA Civ 846, certification was lawful if the claim was bound to fail on every legitimate view of the facts and law. The Secretary of State accepted that article 8 was engaged, but reasonably concluded that removal was proportionate under article 8(2), having considered the claimant’s family dependence, medical evidence, immigration history, the Dublin arrangements and reception and healthcare arrangements in Italy. The claim was therefore clearly unfounded. (paras [37]-[40])
5. The judicial review claim was dismissed. The claimant had to return to Italy for his claims to be addressed. (para [41])