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

In a certification case, the court must decide whether, on the material available to the Secretary of State, the claim was clearly unfounded. A claim is clearly unfounded where it has no realistic prospect of success before an immigration judge.

Article 3 does not generally require a state to provide non-citizens with medical treatment unavailable in their home country. Only very exceptional circumstances, involving compelling humanitarian considerations and a risk of acute suffering while dying, can meet the stringent test.

In an Article 8 family-life claim, length of residence alone may be insufficient to establish a realistic prospect of success where the decision-maker has considered the children’s circumstances and the relevant public-interest factors. Section 55 of the Borders, Citizenship and Immigration Act 2009 cannot enhance rights independently conferred by the Convention.

The claimant, a Malawian national resident in the United Kingdom since 2002, challenged the Secretary of State’s certification under section 94(2) of the Nationality, Immigration and Asylum Act 2002. The certificate treated her Article 3 and Article 8 claims as clearly unfounded and removed her right of appeal to an immigration judge.

Her case concerned the consequences of removal to Malawi for her HIV-related illness and for the family life of herself and her three younger children. Permission to apply for judicial review was granted on the papers. The central issue was whether the Secretary of State had been entitled to conclude that the claims had no realistic prospect of success.

1. The claim for judicial review was dismissed. Applying YH [2010] EWCA Civ 116, the court had to ask whether, on the material available to the Secretary of State, he was right or wrong to conclude that the claims were clearly unfounded. The relevant question was whether either claim had a realistic prospect of success before an immigration judge.

2. The Article 3 claim was hopeless. The House of Lords’ decision in N v Secretary of State for the Home Department [2005] 2 AC 296 established that Article 3 did not ordinarily require a contracting state to provide non-citizens indefinitely with medical treatment unavailable in their home country, even where its absence would significantly shorten life. The claim could succeed only in very exceptional circumstances, on compelling humanitarian grounds, where the person’s present condition meant that removal should not occur unless facilities preventing acute suffering while dying were available in the receiving state.

3. The claimant’s HIV treatment in Malawi might be materially less satisfactory than treatment in the United Kingdom, but that situation was unfortunately common and was not very exceptional. The later decision of the European Court of Human Rights in N v The United Kingdom 26565/05 reached the same conclusion.

4. The Article 8 claim also had no realistic prospect of success. The Secretary of State had considered the children’s residence, nationality, education, healthcare, family circumstances, the claimant’s immigration history and the public interest in effective immigration control. The material did not identify serious medical conditions, special educational needs, disrupted educational stages or specific attachments in the United Kingdom that could make removal disproportionate.

5. The withdrawn seven-year concession did not assist the claimant. Section 55 of the Borders, Citizenship and Immigration Act 2009 could not be used to enhance rights independently enjoyed under the European Convention on Human Rights. The claim therefore failed.