Tologiwa v Secretary of State for the Home Department

Certification of a human rights claim as clearly unfounded requires a high threshold. The Secretary of State must be reasonably and conscientiously satisfied that the claim must clearly fail, giving full weight to the United Kingdom’s Convention obligations.

In a removal case involving a child, the best-interests assessment must be individual and holistic. It must address the child’s actual circumstances, including living arrangements, care, family support, integration and realistically available education. A general statement that education exists in the receiving country does not establish that the particular child will be able to access it. Where material facts require investigation, certification is inappropriate if the claim has a realistic prospect of success.

The claimant, a Nigerian national, entered the United Kingdom with her young daughter and later overstayed. After earlier immigration and tribunal proceedings, she made further asylum and human rights representations, including an Article 8 claim based on her daughter’s best interests and supporting school evidence.

The Secretary of State rejected the claims and certified the human rights claim as clearly unfounded under section 94 of the Nationality Immigration and Asylum Act 2002, removing the claimant’s right of appeal in the United Kingdom. A later supplementary decision letter addressed the previously overlooked representations and documents. The issue was whether the certification remained lawful despite that supplementary consideration.

The claim was allowed. The Secretary of State’s decision certifying the claimant’s human rights claim as clearly unfounded was quashed.

1. Under section 94 of the Nationality Immigration and Asylum Act 2002, certification requires satisfaction that the human rights claim must clearly fail. The question is whether the claim is so clearly without substance that an appeal would be bound to fail. The decision maker must consider both the evidence available and evidence that could reasonably be expected to become available.
2. The best interests of a child require an individual, holistic assessment. Relevant matters include the child’s integration, the length of absence from the country of return, proposed living and care arrangements, relationships with parents and family, nationality, and the soundness of the environment in which the child will be raised. Comparative differences in educational or social provision carry less weight than differences affecting risk, security and fundamental rights, but the assessment cannot be conducted at a high level of generality.
3. The original decision letter failed to engage with the claimant’s detailed representations and supporting documents. The supplementary letter did identify the child’s primary interest in remaining with her mother, recognised immigration control as a countervailing consideration and undertook a balancing exercise. Those matters did not cure the central deficiency.
4. The decision maker had not investigated the particular conditions likely to face the child on return. It did not consider where the family would live, how the claimant would work and care for her daughter, what financial or family support would exist, or what educational facilities would actually be available. It wrongly treated the general availability of education in Nigeria as establishing that the child would be able to access it.
5. Those unresolved factual issues meant that the claimant could not be said to have no realistic prospect of succeeding before the First-tier Tribunal. The claimant was therefore entitled to an in-country appeal. The defendant was ordered to pay the claimant’s costs, with detailed assessment if necessary, and the time for seeking permission to appeal was extended.

The judgment records earlier proceedings before the First-tier Tribunal, which rejected the claimant’s Article 8 and best-interests claims in January 2011. The present proceedings were a judicial review of the Secretary of State’s later certification decision. The certification decision was quashed.