Stephenson, R (on the application of) v Secretary of State for the Home Department (Rev 1)

For a human-rights claim certified as “clearly unfounded” under the Nationality, Immigration and Asylum Act 2002, the question is objective and binary. The court must ask whether there is any legitimate view of the facts or law on which the claim may succeed. If a reasonable doubt exists, certification is unlawful.

In an Article 8 case involving deportation, the assessment must consider the family unit as a whole, including the independent rights of children. The relevant question is whether family members can reasonably be expected to relocate, not whether relocation presents an insuperable obstacle. The existence of a child may make a claim arguable without exceptional medical or other evidence, although it will not necessarily determine proportionality.

The claimant, a Jamaican national, challenged the Secretary of State’s decision to certify his Article 8 human-rights claim as “clearly unfounded” under sections 94(2) and (3) of the Nationality, Immigration and Asylum Act 2002. The certification followed refusal of an application to revoke a deportation order made after the claimant’s conviction and 30-month sentence for possession of crack cocaine with intent to supply and possession of an offensive weapon.

The claimant relied on his family life with his British wife and their young son. The central issue was whether the Article 8 claim had a realistic prospect of success, so that it could not properly be certified as clearly unfounded.

1. Certification test. The claim was governed by the objective, “black and white” approach explained in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348. The court had to consider the relevant factors and exclude irrelevant ones, asking whether any reasonable doubt existed as to whether an Article 8 appeal might succeed. If the claim had a realistic prospect of success, certification had to be quashed.
2. Article 8 assessment. The family unit had to be considered as a whole. The claimant’s wife and child had rights relevant to the proportionality assessment, and the child’s interests could not be treated as merely derivative. The earlier assessment by the AIT did not determine the later claim because the child had not then been born and the relevant circumstances had changed.
3. Relocation. Applying the reasoning in JO (Uganda), JT (Ivory Coast) v Secretary of State for the Home Department [2010] EWCA Civ 10, the relevant question was whether it was reasonable to expect the family to leave with the claimant. The inquiry was not confined to insuperable obstacles or exceptional hardship. The seriousness of relocation difficulties had to be assessed as a whole, alongside the offending and the public interest in deportation.
4. Application. The claimant’s criminal record weighed heavily against him, but his nearly three years without offending, renewed family life and the birth of his son provided material factors in his favour. The child’s existence itself gave the Article 8 claim an arguable foundation. Expert evidence or an unusual medical condition was not a prerequisite at the certification stage.
5. Disposition. Although the claim might ultimately fail after a full proportionality assessment, the reasonable doubt as to that outcome meant it was not clearly unfounded. The Secretary of State’s certificate was quashed, giving the claimant an in-country appeal.

Not an appeal. The judgment determined a judicial review claim at first instance. Permission had initially been refused on the papers, but permission was later granted by Keith J after an oral hearing.