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

For certification purposes, a claim is clearly unfounded only where it is bound to fail. The assessment concerns the quality of the claim and requires the court to consider whether an arguable case could succeed.

In removal cases, the best interests of children require a holistic assessment of their overall well-being. The inquiry may include family relationships, continuity of care, development, education and lifestyle. However, comparative comfort, convenience or access to better provision will generally carry limited weight where the receiving state assures basic rights, security and effective protection.

Best interests are a primary consideration, but other factors may rank equally. The Secretary of State must consider children’s interests as an integral part of the decision, although substance prevails over the form of the decision letter.

The claimant, an Eritrean national recognised as a refugee in Italy, entered the United Kingdom clandestinely and claimed asylum without disclosing her Italian status. Her removal to Italy was repeatedly delayed. She later alleged rape, ill-treatment and risks to herself and her children, and relied on the children’s education, welfare and established life in the United Kingdom.

The Secretary of State certified the human rights claim as clearly unfounded and refused to transfer the claimant’s refugee status. Permission for judicial review was granted on limited grounds. The issues were whether the children’s best interests made the Article 8 claim arguably capable of success and whether the refusal to transfer refugee status was unlawful for failure to consider those interests.

1. Certification test. A claim is clearly unfounded only if it is bound to fail. The focus is primarily on the quality of the claim. The court assesses that question directly, rather than applying ordinary Wednesbury review to whether the Secretary of State was entitled to reach her view.
2. Best interests. The assessment is wide-ranging and holistic. It concerns the child’s overall well-being and may include family unity, continuity of care and affection, long-term attachments, education, lifestyle and optimal life chances. In a removal case, the relevant question includes whether it is reasonable to expect the child to live in the receiving country.
3. The family unit and a sound environment securing basic rights and protection from harm are central considerations. Comparative differences in accommodation, education, welfare or general material advantage usually have substantially less weight, particularly where removal is to a developed European state whose refugee residents have access to provision comparable with citizens.
4. Children’s best interests are a primary, not paramount, consideration. Other factors may be equally compelling. The interests must be considered as part of the initial decision, not as an afterthought. A decision is judged by its substance, so the absence of an express reference to section 55 is not necessarily fatal.
5. On the evidence, Italy was presumed to provide effective state protection and access to employment, education, accommodation and social security. The claimant’s inconsistent accounts did not establish a personal risk displacing that presumption. The children’s educational disruption, readjustment difficulties and possible temporary uncertainty therefore had only peripheral weight.
6. The need for coherent immigration control and the practical utility of the common European asylum system outweighed those matters. The Article 8 claim was bound to fail. The challenge to the refusal to transfer refugee status also failed because the substance of the decision showed that the children’s interests and welfare had been considered. The claim was dismissed in its entirety and a stay was refused.