BAH v Secretary of State for the Home Department

On a renewed application for permission to seek judicial review, the court must assess the lawfulness of the Secretary of State’s decision on the material that was before the decision-maker. The court does not conduct a de novo human-rights assessment.

Where family life is assumed, proportionality depends on the evidence concerning the relationship, the circumstances in which it was formed, and the claimant’s immigration history. Family life formed while immigration status was precarious may properly be given limited weight.

The claimant, a Sierra Leonean national, sought permission to challenge decisions refusing to treat further representations as a fresh asylum claim. The representations relied principally on family life with his young daughter. Earlier human-rights proceedings had been abandoned, and the claimant had subsequently absconded from bail before being removed.

The Secretary of State considered the evidence, Article 8, and the effect of removal on the child. Permission was refused on the papers, as were later applications for interim relief and expedition. The central issues were whether the further representations disclosed an arguable error of law and whether removal was arguably disproportionate.

1. Application refused. The claim was not arguable.
2. The court was prepared to assume that some family life existed between the claimant and his daughter. Even on that assumption, removal was not arguably disproportionate.
3. The Secretary of State was entitled to assess the intensity and nature of the family relationship by reference to weaknesses and contradictions in the evidence, the failure of correspondence to reach the claimant, and his return to the United Kingdom at a different location after absconding.
4. The Secretary of State was also entitled to take account of the fact that the family life had been created while the claimant’s immigration position was precarious. The child’s lack of knowledge of that precariousness did not prevent that consideration.
5. The Article 8 balancing exercise had been properly addressed, including the impact on the child. Following [2010] EWCA Civ 116, judicial review was not a de novo hearing, so later evidence could not be relied on to impugn the Secretary of State’s decision.
6. The defendant was awarded costs summarily assessed at £760, subject to detailed assessment.