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

Certification of a human-rights claim under section 94 requires anxious scrutiny. The Secretary of State must assess both the substance of the claim and whether there is a realistic prospect that a properly directed tribunal could disagree with the proposed outcome. The Secretary of State acts as a gatekeeper, but must distinguish between a decision that is merely open to the Secretary of State and one with which no tribunal could lawfully disagree. A formulaic reference to the hypothetical tribunal is unnecessary, but the distinction must genuinely be addressed. Where a claim is rejected immediately after it is made, without a reasonable opportunity to provide supporting evidence, the certification decision may be unlawful. The proper remedy is to set the certification aside and remit the matter for reconsideration.

The claimant, a South African national, sought judicial review of the Secretary of State’s certification of his Article 8 claim as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2000. The claim relied on family and private life in the United Kingdom. It was rejected and certified shortly after it was made, before the claimant’s solicitors had been given an opportunity to assemble evidence. A later decision considered further witness statements and maintained the certification. The central issue was whether the certification decisions had been reached with the anxious scrutiny required by the authorities, and whether the case should be allowed to proceed to an immigration tribunal.

1. Certification set aside and matter remitted. The application was granted. The court set aside the certification decision and remitted the matter for reconsideration. It did not order that the claim be heard by a tribunal, although the claimant was entitled to have consideration given to that question.
2. Certification under section 94 requires anxious scrutiny. The Secretary of State must consider whether there is a realistic prospect that a properly directed immigration judge could disagree with the proposed conclusion. The Secretary of State is acting as gatekeeper to a possible appeal, but remains responsible for deciding the threshold question in the Secretary of State’s own capacity. The hypothetical-judge formulation is helpful but is not a legal incantation.
3. The court must distinguish between a decision which was open to the Secretary of State and one with which no other decision-maker could lawfully disagree. The later decision did not show real consideration of that distinction. The earlier decision was made one day after the Article 8 claim and without giving the solicitors an opportunity, however short, to provide evidence. That failure meant that the certification decision did not demonstrate anxious scrutiny.
4. The court’s approach was consistent with R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116: the decision must be assessed on the material available to the Secretary of State, subject to the defendant’s agreement that certain later material could be considered. The court also adopted the distinction drawn in SSHD v QY (China) [2009] EWCA Civ 680 between reviewing rationality and deciding primary factual issues that should ordinarily be determined by a tribunal.
5. The court noted that a tribunal might ultimately conclude that the evidence did not satisfy the stringent family-life test discussed in Kugathas v Secretary of State for the Home Department [2002] EWCA Civ 31. That possibility did not justify certification without proper scrutiny and factual assessment.

First-instance judicial review. The judgment records that permission was granted by Wyn Williams J on 23 July 2009. The court granted the application, set aside the certification decision and remitted the matter for reconsideration.