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

Certification of a human rights claim as clearly unfounded is lawful only where an appropriately directed Immigration Judge would be bound to dismiss the claim. The Secretary of State must assess whether the claim is reasonably arguable, rather than determine the proportionality issue as if deciding the substantive appeal.

Article 8 may be engaged by the foreseeable effect of removal on mental health and psychological integrity, particularly where removal would sever essential family support. In a Dublin case, the relevant purpose is allocation of responsibility for processing the asylum claim and prevention of forum shopping. The general aim of immigration control has little bearing on that question. Where an Immigration Judge might find removal disproportionate, certification is unlawful.

The claimant, a Zimbabwean national, challenged decisions maintaining her proposed removal to Germany under the Dublin II arrangements and certifying her Article 8 claim as clearly unfounded. She relied on psychiatric evidence concerning severe post-traumatic stress disorder, suicide risk and her dependence on close family support in the United Kingdom.

The Secretary of State accepted that the claimant might have family or private life but considered removal proportionate, referring to immigration control and the possibility of maintaining relationships by communication. The central issue was whether it was possible to say that an Immigration Judge would be bound to reject the Article 8 claim.

1. The claim succeeded. The Secretary of State's decision of 2 December 2011 and the certification that the claimant's human rights claim was clearly unfounded were quashed. Costs were awarded to the claimant, including the costs of the adjournment application. Permission to appeal was refused.
2. Following R(Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, Article 8 can in principle be engaged by the foreseeable consequences of removal for health, even where Article 3 is not breached. The threshold is high, but mental stability and psychological integrity fall within private life.
3. The applicable certification test, reflected in R(Ahmadi) v Secretary of State for the Home Department [2005] EWCA Civ 1721, was whether an Immigration Judge properly directing himself would be bound to conclude that the claim must fail. If the judge might reach the opposite conclusion, the claim cannot lawfully be certified as clearly unfounded.
4. The court distinguished the Article 3 reasoning in J v Secretary of State for the Home Department [2005] EWCA Civ 629 and R(Tozlukaya) v Secretary of State for the Home Department [2006] EWCA Civ 379. The present case concerned Article 8, essential family support in the United Kingdom and a serious risk of psychological collapse and suicide if that support were removed.
5. The court applied the reasoning in R(AM (Somalia)) v Secretary of State for the Home Department [2009] EWCA Civ 114. The Dublin system allocates responsibility for considering an asylum claim and prevents forum shopping; it does not itself answer whether removal would breach Convention rights. The Secretary of State therefore erred by treating immigration control as the relevant aim and by deciding proportionality herself instead of asking whether the claim was bound to fail.

First-instance judicial review. The Secretary of State's decision of 2 December 2011 and the certification were quashed. Permission to appeal was refused by the High Court.