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

A family-ties policy directed to reuniting an existing family unit does not apply where the relationship was formed after the claimant’s arrival in the United Kingdom. Removal may interfere with family life under Article 8, but the interference remains proportionate where the claimant has a poor immigration history and another state is responsible for considering his asylum claim under the Dublin Regulation. The possibility of obtaining a favourable contact order does not by itself make removal disproportionate. An Article 6 complaint concerning custody proceedings is parasitic on any Article 8 claim and does not independently prevent removal where the proceedings can be pursued from abroad.

The claimant, an asylum seeker whose claim had previously been dealt with by the Netherlands, challenged the Secretary of State’s certification of his human rights claim as clearly unfounded and the proposed removal to the Netherlands. He relied on his relationship with Tracy Newis and their young son, pending contact proceedings, and argued that removal would prevent effective participation in those proceedings. He also relied on a family-ties policy and on Article 6 and Article 8 of the European Convention on Human Rights. The court considered whether the Secretary of State had applied the correct policy and lawfully assessed the proportionality of removal.

1. Permission refused. The family-ties policy was correctly understood as applying to members of an existing family unit who had become separated through circumstances outside their control. It did not apply to a relationship formed after the claimant came to the United Kingdom.
2. The Secretary of State’s Article 8 assessment was lawful. Although the claimant had family life with his partner and son, that family life had been formed when he knew that he had no right to remain. His immigration history was an important consideration. The Secretary of State was entitled, and obliged, to apply the relevant immigration policy, including the Dublin Regulation.
3. The fact that contact proceedings were pending, or that the claimant might obtain a favourable contact order, did not make removal disproportionate. Even on that assumption, removal to the Netherlands would remain proportionate. The claimant could pursue his claims from there, and the Netherlands was the appropriate state to consider his asylum claim.
4. Any Article 6 complaint arising from custody proceedings was parasitic on the Article 8 claim. It did not provide an independent basis for preventing removal, particularly because the proceedings could be pursued from the Netherlands.
5. The court made the usual order for the costs of the acknowledgment of service, assessed at £400, with assessment of the claimant’s publicly funded costs.

This was a renewed application for permission to apply for judicial review. No earlier decision is identified in the judgment.