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

A human rights claim is a claim made to the Secretary of State. A previous human rights case raised only in an appeal to the Tribunal does not prevent a later claim from being treated as the first claim for statutory purposes.

Certification under section 94 may apply where the alleged Article 8 interference will occur in the United Kingdom. The question is whether the claim is clearly unfounded, assessed by public law review and anxious scrutiny. The Secretary of State must consider all relevant circumstances, including the effect of removal on every person sharing family life with the claimant and the significance of lengthy lawful residence during childhood and youth.

The claimant, a Jamaican citizen who had lived lawfully in the United Kingdom since childhood, challenged the Secretary of State’s decision certifying his Article 8 claim as clearly unfounded under the Nationality, Immigration and Asylum Act 2002.

He had a long-term partner, five younger children, three adult children and an elderly mother in the United Kingdom. A deportation order had followed serious criminal convictions. His earlier Article 8 arguments had been raised in an appeal against the deportation decision. The central issues were whether the later claim was his first statutory human rights claim, whether certification was available for an alleged domestic interference with Article 8, and whether the Secretary of State had properly assessed the family consequences and his lengthy residence.

1. The claim was quashed. The 2007 claim was the claimant’s first statutory human rights claim because the earlier claim had been made to the Tribunal, not to the Secretary of State as required by section 113(1) of the Nationality, Immigration and Asylum Act 2002. It was therefore subject to the in-country appeal regime.
2. Section 94(3) applied even though the alleged Article 8 interference would occur in the United Kingdom. The provision contained no territorial restriction. The statutory definition focused on removal from, or requiring a person to leave, the United Kingdom. Limiting certification to interference in the receiving state would require words to be added to the statute and would undermine the purpose of preventing unmeritorious claims from using the in-country appeal system.
3. The applicable standard was whether the claim was clearly unfounded, meaning that it could not succeed on any legitimate view or that an adjudicator applying anxious scrutiny could have no realistic prospect of allowing it. The Secretary of State’s decision was reviewable on public law grounds, including failure to consider relevant matters, consideration of irrelevant matters or irrationality.
4. The Secretary of State failed to assess separately the impact of removal on the claimant’s partner, five children, three adult children and mother. Following Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, the effect on all persons sharing family life with the claimant had to be considered. The earlier factual findings and updated witness evidence made those consequences material.
5. The Secretary of State also gave insufficient weight to the claimant’s lawful residence in the United Kingdom from the age of 11. The approach in Maslov v Austria 1638/03 [2008] EHRR 546 required very serious reasons to justify expulsion of a settled migrant who had spent all or most of childhood and youth in the host country.
6. The order quashed the certificate only. It did not revoke the deportation order. The Secretary of State was required to reconsider certification, taking account of the later authorities and any further representations.

First-instance judicial review. The judgment does not state any appeal from this decision.