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

Certification of an asylum or human-rights claim as clearly unfounded is reviewed by applying ordinary judicial-review principles, with anxious scrutiny. The court does not substitute its own view, although where the claim is not clearly unfounded the Secretary of State’s certification will rarely be rational.

The decision-maker must consider the factual substance and detail, the background evidence, credibility, and whether the claim could succeed under the relevant Convention. A relationship formed when both parties’ immigration status was temporary is a relevant Article 8 consideration. A person has no entitlement to leave under paragraph 319C of the Immigration Rules merely because a route to application exists, particularly where the requirements have not been shown to be satisfied.

The claimant, a South African national, sought judicial review of decisions certifying her asylum, humanitarian and Article 8 claims as clearly unfounded. She had entered the United Kingdom on a working holiday visa, overstayed after later applications failed, and formed a relationship with a partner whose leave was temporary.

The principal challenge was that the Secretary of State had failed to consider a possible application under paragraph 319C of the Immigration Rules and had inadequately assessed the parties’ family life, relocation possibilities and the relevant Article 8 authorities. A subsidiary challenge concerned a later response to further representations.

1. Claim dismissed. The Secretary of State’s certification of the Article 8 claim was not irrational. The asylum certification was not challenged.
2. The court applied the approach summarised in R(A) v Secretary of State for the Home Department [2012] EWCA Civ 23: ordinary judicial review with anxious scrutiny, rather than substitution of the court’s own view. The clearly unfounded assessment required consideration of the claim’s factual substance, background evidence, credibility and whether it could succeed under the Convention, following ZL & VK [2003] EWCA Civ 25.
3. The claimant had no entitlement to remain as her partner’s dependant. Paragraph 319C provided a possible route of application, but the requirements included compliance with the general grounds for refusal and adequate maintenance. Her overstaying, breach of conditions and lack of evidence of maintenance meant that the Secretary of State was not required to speculate about that route.
4. The precarious nature of the relationship was a proper Article 8 consideration. The claimant and her partner knew that their immigration status was temporary when the relationship began. The Secretary of State was entitled to conclude that removal was proportionate. Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 and Hayat v Secretary of State for the Home Department [2010] UKUT 0444 arose in materially different circumstances, involving no comparable overstaying or breach of conditions.
5. The Secretary of State had adequately considered the family-life claim, possible relocation and the later representations. The second letter contained no material error of law or approach. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment.

This was a first-instance judicial-review claim. Permission was initially refused, and applications for a stay of removal and permission to appeal against that refusal were also refused. The claimant was removed and later obtained permission from a different Deputy High Court judge for the substantive claim to proceed.