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

A human rights claim is “clearly unfounded” only where it is so lacking in substance that it is bound to fail. The assessment is objective and focuses primarily on the quality of the claim.

Under Border Citizenship and Immigration Act 2009, section 55, the best interests of every child in the United Kingdom must be treated as a primary consideration, whether or not the child is British. The duty is fact-sensitive. It may require further investigation, but it does not impose a universal requirement for a full investigation into the child’s future. Where adequate information is available about the child’s circumstances and proposed destination, certification may be lawful.

The claimant, a Nigerian national, sought judicial review of the Secretary of State’s decision to certify his human rights claim as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002. The claim concerned the article 8 rights and welfare of his children, including their education, family relationships and an alleged risk of female genital mutilation on return to Nigeria.

Permission was granted by Lindblom J. The parties agreed that the challenges would also encompass subsequent reconsiderations in June and December 2011. The issues were whether the Secretary of State had properly considered the best interests of non-British children, whether further investigations were required, and whether the alleged risk of FGM prevented certification.

1. Application refused. The claimant’s article 8 claim was so lacking in substance that it was bound to fail. The certification under section 94 of the Nationality, Immigration and Asylum Act 2002 was therefore lawful.
2. The “clearly unfounded” test is objective. It requires consideration of the factual substance and detail of the claim, its consistency with background information, whether it is capable of belief in whole or in part, and whether, if believed, it could fall within the relevant Convention protection. The focus is primarily on the quality of the claim rather than its prospects of success on appeal, applying Yogathas and Another v Secretary of State for Home Department [2003] AC 920, ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 345 and VL and VL v Secretary of State for the Home Department [2003] 1 WLR 1230.
3. The best interests of the children were a primary consideration under section 55 of the Border Citizenship and Immigration Act 2009. That obligation applied to the claimant’s non-British children. Nationality was relevant but not decisive. The Secretary of State had considered the children’s integration, schooling, family circumstances, care arrangements and access to education in Nigeria, consistently with ZH (Tanzania) v Secretary of State [2011] 2 AC 166, HH v Deputy Prosecutor of Italy & Others [2012] 3 WLR 90 and EM (Lebanon) v Secretary of State [2008] 1 AC 1198.
4. The duty to investigate is fact-sensitive. It may require the Secretary of State to obtain further medical, educational or welfare evidence where the available information is inadequate. It does not require a full-blown investigation in every case. The present case was distinguishable from The Queen (on the application of Tinizary) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin), because relevant evidence about the child and Nigerian schooling was available.
5. The approach in Hague Convention cases described in Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 did not determine the section 55 inquiry. The two regimes served different purposes. The FGM challenge also failed because the evidence supported protection through Nigerian NGOs or internal relocation to Lagos.

Permission to apply for judicial review was granted by Lindblom J on 6 December 2011. The Administrative Court refused the application and upheld the challenged certification decisions.