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

An immigration appeal is brought when it is instituted. A later safe-third-country certificate cannot stifle an in-country appeal already brought, absent express statutory provision causing it to lapse.

A human-rights claim may be certified as clearly unfounded only where the contrary case is bound to fail. The court must closely scrutinise certification. In a Dublin transfer, the administrative aim of allocating responsibility for an asylum claim does not itself answer whether removal would disproportionately interfere with private and family life. A viable claim based on serious mental illness, family support and likely isolation cannot lawfully be certified as clearly unfounded.

The appellant, a Somali national with depression and post-traumatic stress disorder, claimed asylum in the United Kingdom after first claiming asylum in Italy. Italy accepted responsibility for considering his claim under the Dublin arrangements. His brothers, both recognised refugees in the United Kingdom, provided his principal family and practical support.

The Secretary of State first issued a safe-third-country certificate under repealed legislation. Cranston J held that certificate void, but held that a fresh certificate could stop an existing in-country appeal and did not accept the challenge to the clearly-unfounded certification: [2008] EWHC 1312 (Admin).

The appeal concerned whether a later certificate could prevent an appeal already instituted, whether the Article 8 claim was lawfully certified as clearly unfounded, and whether a valid notice of appeal existed.

1. Appeal allowed unanimously. Sedley LJ, with whom Jacob and Lloyd LJJ agreed, held that the later certificate could not prevent the appellant’s in-country appeal and that the clearly-unfounded certificate was unlawful.

2. Although an appeal is a process, the statutory phrase “brought or continued” distinguishes the one-off act of bringing an appeal from its subsequent continuation. The provisions concerning appeals pending, continued and lapsed reinforced that construction. Paragraph 5(2) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 therefore did not authorise a later third-country certificate to stop an appeal which had already been brought.

3. A clearly-unfounded certificate is lawful only if the human-rights argument is bound to fail. Close judicial scrutiny is appropriate because certification practically deprives the claimant of an effective appeal. The approach was consistent with AG (Eritrea) [2007] EWCA Civ 801 and was subsequently confirmed by ZT (Kosovo) [2009] UKHL 6.

4. The Article 8 claim was plainly arguable. Removal would be likely both to provoke psychological deterioration and to sever the appellant from his remaining family life. The availability of psychiatric services in Italy did not answer the claim. The Dublin system allocated responsibility for determining asylum claims; it did not displace the Secretary of State’s separate duty to act compatibly with Convention rights. Its immigration-control purpose had limited present weight, while the loss of family support, language difficulties, and likely isolation and relapse in Italy could make removal disproportionate.

5. The court quashed the clearly-unfounded certification. The Secretary of State accepted that, once both grounds succeeded, the letter of 21 October 2004 was capable of being an appealable immigration decision and the second notice was valid. The appeal could therefore proceed in country.

• Court of Appeal (Civil Division): allowed the appeal and quashed the clearly-unfounded certification: [2009] EWCA Civ 114.

• High Court, Administrative Court (Cranston J): held the first third-country certificate void, but held that the fresh certificate stopped an existing appeal and rejected the challenge to certification: [2008] EWHC 1312 (Admin).