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

For a fresh claim based on Article 8, the Secretary of State must not reject the claim as having no realistic prospect of success where the evidence, taken at its highest, could reasonably lead an immigration judge to find that family life exists or that removal would be disproportionate. Cohabitation by two parents with their young child may establish family life, even where the adult relationship began casually and the period of cohabitation is short. The possibility of applying for entry clearance after removal is relevant, but uncertainty about eligibility and delay may materially affect proportionality.

The claimant challenged decisions dated 23 and 26 December 2008 refusing to treat further submissions as a fresh claim. The submissions relied on his relationship with a British citizen, their young child and claimed cohabitation. He had already exhausted his asylum appeal rights and was removed to Iraq after permission and an injunction were refused.

The issues were whether there was a realistic prospect that an immigration judge would find family life under Article 8(1), and whether there was a realistic prospect that removal would be disproportionate under Article 8(2).

1. Permission and relief. Permission was granted and the Secretary of State’s decisions were quashed. Further relief was adjourned. The claimant’s removal had not been unlawful because it followed lawful decisions permitting removal.
2. Family life. The evidence had to be assumed to be true, subject to its limitations. The birth of the child and cohabitation by both parents with the child created a reasonable prospect that an immigration judge would find family life. The short period of cohabitation reflected the child’s age and did not make that prospect unrealistic (paras [14]–[16]).
3. Entry clearance. Returning to Iraq and travelling to Jordan, or through Syria to Jordan, to make an entry-clearance application was not itself disproportionate. The court relied on SM (Entry clearance application in Jordan - Proportionality) Iraq CG [2007] UKAIT 00077. Chikwamba v Secretary of State [2008] UKHL 40 concerned an effectively unassailable entry-clearance case and did not establish that return was always disproportionate.
4. The ordinary position under paragraph 277 of the Immigration Rules was that an application as a spouse, fiancé or partner would have to wait until 2012. The suggested discretion under paragraph 320 was left undecided. Paragraph 246 might provide another route based on access to a child, but its requirements remained uncertain. The Secretary of State could not rely simply on an assumption that entry clearance would be granted (paras [19]–[24]).
5. Proportionality. The child’s early years, the possible continuing family relationship and potentially prolonged separation could lead an immigration judge to find removal disproportionate. The threshold was whether that conclusion was realistically open, not whether it was probable. The Secretary of State’s contrary conclusion was irrational (paras [25]–[26]).

• High Court (Administrative Court): The claim was initially rejected on the papers on 22 January 2009. An injunction was refused on 13 and 17 February 2009, and the claimant was removed on 17 February 2009. On renewal and substantive consideration, the present court granted permission and quashed the decisions dated 23 and 26 December 2008.