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

A claim certified as clearly unfounded may be certified where an appeal would have no prospect of success. The assessment requires consideration of the claimant’s family and private life under Article 8, including whether removal would constitute an interference and whether that interference would be proportionate to the legitimate aim of immigration control.

Where a family has no right to remain in the United Kingdom and can reasonably enjoy family life together in the proposed country of removal, an Article 8 claim will ordinarily fail. A precarious immigration history is not determinative, but is a significant factor in the proportionality assessment. The absence of an exceptional case is not a separate legal test.

The claimant, a Bangladeshi national, sought judicial review of the Secretary of State’s certification under section 94(2) of the Nationality, Immigration and Asylum Act 2002 that his Article 8 claim was clearly unfounded. He had lived in the United Kingdom with his wife and two younger daughters since 2003. The family had no extant right to remain, and removal would be as a family unit.

Permission was granted by Foskett J on the issue of certification, particularly in view of the limited consideration initially given to the effect of removal on the claimant’s wife and daughters. The Secretary of State reconsidered the claim but maintained the certification. The central issue was whether an appeal to the immigration tribunal would have any prospect of success.

1. Disposition. The claim for judicial review was dismissed. Permission to appeal was refused. The claimant was ordered to pay the Secretary of State’s costs, subject to detailed assessment if not agreed.
2. Clearly unfounded threshold. The court adopted the approach derived from ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 and R (on the application of AK (Sri Lanka)) v Secretary of State for the Home Department [2009] EWCA (Civ) 447. The question was whether it was reasonably open to the Secretary of State to conclude that an appeal against refusal of the Article 8 claim had no prospect of success.
3. Family life. The claimant and his family had established family life in the United Kingdom. Removal would interfere with their ability to enjoy that family life there, even though the family would remain together. Applying the final stage of the R v Secretary of State for the Home Department, ex p Razgar [2004] UKHL 27 analysis, the relevant question was proportionality. The court concluded that an immigration judge would have no realistic prospect of finding removal disproportionate where the family could reasonably enjoy family life together in Bangladesh.
4. Private life and proportionality. The family had established private life in the United Kingdom, including social connections, routines and the daughters’ education. Those matters could engage Article 8, but did not make the claim arguable on the facts. The claimant’s immigration status had been precarious for years. That history was not independently determinative, but was a significant factor to be weighed against the claimed private and family life.
5. Exceptionality. The court applied the clarification in Huang v Secretary of State for the Home Department [2007] UKHL 11 that exceptionality is not an additional legal test. The relevant question remained whether refusal of leave would prejudice family life sufficiently seriously to breach Article 8, taking account of all considerations favouring immigration control.
6. Overall, the Secretary of State was entitled to conclude that the Article 8 claim was clearly unfounded.

Foskett J granted permission for judicial review only on the issue whether the claimant’s Article 8 claim had been properly certified as clearly unfounded. The Secretary of State reconsidered the claim and maintained the certification. The High Court dismissed the substantive claim.