Secretary of State for the Home Department v QY (China)

In a pure challenge to certification of an immigration claim as clearly unfounded, where primary facts are not disputed, the court must decide whether the claim has a realistic prospect of success. Any reasonable doubt means that the claim is not clearly unfounded. Although expressed as rationality review, the court asks the same substantive question as the Secretary of State.

An Article 8 claim against otherwise lawful removal must proceed on the premise that removal is imminent. Study undertaken only because an unsuccessful challenge to removal has kept the person in the United Kingdom supplies no substantive counterweight to removal in the proportionality balance.

QY, a Chinese student, was found working apparently full time in breach of a condition limiting her paid employment. The Secretary of State decided to remove her under section 10 and later rejected and certified her Article 8 claim as clearly unfounded.

Wilkie J rejected the judicial review challenge to removal but quashed the certification decision, holding that removal of a student in the middle of a course might engage private life and might be disproportionate. The Secretary of State appealed. The removal challenge was abandoned. The central issues were the intensity of review of a certification decision and whether QY's later courses of study could make her Article 8 claim realistically arguable.

1. Appeal allowed. The court restored the certification and dismissed the remaining limb of QY’s judicial review claim.

2. Following ZT (Kosovo) [2009] UKHL 6, a certification challenge is formally a rationality challenge. Where there is no dispute of primary fact, however, the court can assess rationality only by deciding whether the claim had a realistic prospect of success. If an immigration appeal might succeed, certification as clearly unfounded is irrational. Wilkie J therefore made no legal error by reaching his own conclusion rather than applying a deferential Wednesbury review.

3. The court did not decide whether post-decision evidence was admissible on a certification challenge. Rule 353 had formalised reconsideration of fresh material, and the issue was unnecessary to the result.

4. The Article 8 analysis had to begin with the lawful removal decision. It could not be used to reopen matters already determined in deciding that removal was lawful. QY's reliance on continuing study depended entirely on her remaining in the United Kingdom under an injunction obtained while unsuccessfully challenging removal. Assuming, without deciding, that removal interfered with private life under Article 8(1), there was nothing of substance on her side of the proportionality balance. Removal was manifestly lawful and proportionate under Article 8(2).

5. The court expressly reserved the separate question whether the Article 8 claim could in law have been advanced independently of the removal decision.

• Court of Appeal (Civil Division): allowed the Secretary of State's appeal and dismissed the outstanding Article 8 certification limb of the judicial review claim.
• Administrative Court: Wilkie J, [2008] EWHC 3072 (Admin), rejected the challenge to removal but allowed the challenge to certification of the Article 8 claim as clearly unfounded.