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

A claim may be certified as clearly unfounded only where it has no real prospect of success and is bound to fail. The threshold is high and requires anxious scrutiny of the material before the decision-maker and reviewing court. In an Article 8 case, the assessment must consider whether family or private life is arguably established and whether removal may arguably be disproportionate. Emotional ties alone are normally insufficient between adult relatives, but dependency and the overall circumstances may establish family life. The question whether a claim is clearly unfounded is distinct from the fact-sensitive assessment of the underlying Article 8 merits.

The claimant, a Malawian national, sought judicial review of the Secretary of State’s decision under section 94 of the Nationality, Immigration and Asylum Act 2002 certifying his Article 8 claim as clearly unfounded. The certification deprived him of an in-country appeal against the removal decision.

He had entered the United Kingdom as a minor and had lived for substantial periods with British relatives. He relied on family dependency, the absence of surviving immediate family in Malawi, his lack of formal education, and evidence of depression and suicidal thoughts. The central issue was whether his claim was bound to fail on the material then available.

1. The application for judicial review succeeded and the certification was quashed. The claimant was therefore entitled to have the Article 8 claim considered by the appellate tribunal.
2. The test under section 94 of the Nationality, Immigration and Asylum Act 2002 is a high, binary threshold. A claim is clearly unfounded only if it has no real prospect of success, or is so lacking in substance that it is bound to fail. The decision-maker and reviewing court must give the claim anxious scrutiny and must assess only the evidence presently available, without speculating about further evidence.
3. In assessing an Article 8 claim, the decision-maker must address the questions identified in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, as explained in R (Huang) v Secretary of State for the Home Department [2007] UKHL 11. The proportionality assessment is fact-sensitive. Effective immigration control may justify interference, but the ultimate question is whether the interference with established private or family life may amount to a breach of Article 8.
4. There is no presumption that family life exists between adult relatives. Normal emotional ties are ordinarily insufficient, but financial or other dependency may establish family life. Relevant matters include the nature of the family links, age, past living arrangements, contact, dependency, and the claimant’s individual circumstances.
5. The evidence was weak and the case was close to the borderline. Nevertheless, the claimant’s entry as a minor, prolonged residence with dependent relationships, lack of surviving parents and siblings, possible continuing dependency, and evidence of depression provided a reasonable prospect that a tribunal might find removal disproportionate. The merits were therefore not sufficiently black and white to justify certification.

The judgment states that permission to bring judicial review proceedings had been granted by HHJ Anthony Thornton QC. No further appellate history is stated.