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

On an application to revoke a deportation order, the Secretary of State must consider whether circumstances have materially changed or fresh information has emerged since the order and earlier appeal. Article 8 requires a structured assessment of interference and proportionality. The question is whether it is reasonable for family life to continue in the country of removal, not whether there are insurmountable obstacles. Medical treatment must be assessed for both availability and affordability where it bears on that question. A claim is not clearly unfounded merely because it has been rejected; the Secretary of State must explain why it has no more than a fanciful prospect of success. Fresh submissions require anxious scrutiny. The claimant’s decision letters were unlawful and were quashed.

The claimant, a Malawian national who had lived in the United Kingdom since adolescence and had several convictions, challenged decisions refusing to revoke a deportation order and certifying his human rights claim as clearly unfounded. After the earlier appeal, he married a British citizen with serious medical conditions. Further evidence concerned their relationship, medical treatment in Malawi and the claimant’s health.

The Secretary of State issued decisions on 21 December 2009 and 3 June 2010. The central questions were whether the decisions properly addressed the changed circumstances, the effect of removal on both spouses’ Article 8 rights, the accessibility and affordability of medical treatment, the section 94 certification and the fresh-claim test.

1. Revocation application. The application fell under paragraphs 390 and 391 of the Immigration Rules. The issue was whether circumstances had changed or fresh information had emerged since the deportation order and appeal, not whether the original order or appeal decision had been correct.
2. Article 8. Applying VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5, the Secretary of State had to distinguish between whether removal interfered with private or family life and whether that interference was proportionate. The assessment required structured reasoning about the predictable or potential impact on both spouses. The marriage was a substantial new fact requiring consideration. The Secretary of State wrongly relied on the earlier tribunal’s finding that no close relationship existed, rather than deciding whether the relationship now existed and assessing its consequences.
3. The suggestion that any separation resulted from the wife’s choice to remain in the United Kingdom was legally flawed. The causative link between deportation and the separation remained clear. The wife’s medical position also required consideration of whether necessary medicines were available at a cost she could reasonably meet. Availability alone was insufficient.
4. Section 94 certification. Under section 94(2) of the Nationality, Immigration and Asylum Act 2002, clearly unfounded meant a claim so lacking in substance that it had no more than a fanciful prospect of success. The Secretary of State had to give reasons, albeit succinctly. The certification was irrational and inadequately reasoned.
5. Fresh claim. Under paragraph 353 of the Immigration Rules, the Secretary of State had to consider whether the new material was significantly different and, taken with the earlier material, created a realistic prospect of success. The assessment required anxious scrutiny. The second decision repeated the errors concerning the relationship and the affordability of treatment.
6. The Crown Court recommendation for deportation had not applied the relevant detriment test identified in R v Kluxen [2010] EWCA Crim 1081. On reconsideration, no weight should be attached to the recommendation itself, although the sentencing judge’s views about criminality remained relevant.
7. The decisions dated 21 December 2009 and 3 June 2010, and the removal directions, were quashed. The Secretary of State was required to determine the revocation application afresh, having regard to all relevant circumstances existing at the date of redetermination. Costs followed the event.

The judgment does not state a further appellate history. It records that the claimant’s earlier appeal against deportation was dismissed by the Asylum and Immigration Tribunal on 12 May 2009, and that the High Court refused reconsideration on 14 August 2009. Those earlier decisions were not endorsements of the merits.