B, R (on the application of) v Secretary of State for the Home department

Certification of a human rights claim as clearly unfounded is appropriate only where the claim cannot succeed on any legitimate view, or an appeal is bound to fail. The court must assess whether certification was irrational, rather than determine the underlying merits.

Where children’s Article 8 rights are relied upon, the decision-maker must apply anxious scrutiny and undertake a fact-sensitive investigation. Generalised assumptions about relocation, childcare, education or medical treatment are insufficient where material evidence could support a contrary conclusion. The children’s best interests must be a primary consideration under Section 55 of the Borders, Citizenship and Immigration Act 2009 and Article 3.1 of the United Nations Convention on the Rights of the Child.

The claimant, a Malawian national, sought judicial review of the defendant’s certification of his asylum and human rights claims as clearly unfounded under Section 94(2) of the Nationality, Immigration and Asylum Act 2002. Certification removed the usual right of appeal.

The claimant, his wife and their two children faced removal to Malawi. Both parents were HIV-positive. The eldest child had spent six of her seven years in the United Kingdom and had established private life there. The central issue was whether the defendant had adequately considered the children’s welfare, private life, medical risks and alternative care before concluding that an appeal could not succeed.

1. The claim was allowed and the certification decision was quashed. The court was concerned only with whether it was irrational in the public law sense to certify the claim, not with deciding the underlying Article 8 merits. Those merits were for an Immigration Judge.
2. The test under Section 94 of the Nationality, Immigration and Asylum Act 2002 was whether the claim could not succeed on any legitimate view, or was so lacking in substance that an appeal was bound to fail. The material available did not meet that threshold.
3. The defendant had relied on the possible availability of the children’s grandmother and Malawi’s orphan-care arrangements without investigating whether those were realistic and sustainable options. Relevant matters included the grandmother’s age, income, health and housing, and the children’s care throughout their minority.
4. The defendant had also relied on the existence of HIV treatment in Malawi without addressing whether treatment would be available without charge, whether the parents would qualify for it, whether they could afford it, and whether the necessary drugs were in fact available. Those omissions were material because both parents had AIDS and the evidence concerning treatment was limited.
5. The eldest child’s private life had been considered at an impermissibly high level of generality. The defendant had not undertaken a fact-sensitive inquiry into the effect of moving her from the English education system to Malawi, or asked the family why their private life could not reasonably continue elsewhere.
6. In light of Section 55 of the Borders, Citizenship and Immigration Act 2009 and Article 3.1 of the United Nations Convention on the Rights of the Child, it could not rationally be concluded that an Immigration Judge could not reach a contrary view. The case was to be referred promptly to an Immigration Judge. Costs were to be assessed on the standard basis if not agreed.

This was a first-instance judicial review. Permission was initially refused on the papers but granted by Nichol J after an oral renewal hearing on 28 June 2010. An injunction restraining removal was granted on 4 December 2009.