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

An in-country immigration appeal requires a human rights claim to have been made before the immigration decision being challenged. The question is one of substance, not form. The claimant must assert that he should not be removed, facts capable of establishing existing or prospective private or family life, and that removal would interfere with that life. A general wish to be with family, without facts showing more than ordinary emotional ties or a connection between family life and the wish to remain, is insufficient. A later clearly unfounded certificate cannot remove an appeal already validly brought, but that principle does not assist where no qualifying human rights claim existed before the decision. The claim for judicial review was dismissed.

The claimant, an Iranian national, challenged decisions refusing him leave to enter the United Kingdom and directing his removal to Slovenia under the Dublin II Regulation. He also challenged the First-tier Tribunal’s refusal to entertain his appeal. The appeal notice referred expressly to the earlier safe-country certification but, on the evidence, also identified the later refusal of leave to enter. The central issues were whether that refusal was the decision appealed against, whether the claimant had made a human rights claim before it was issued, whether any appeal was out of time, whether the Tribunal had constitutive jurisdiction, and whether the Article 8 claim was clearly unfounded.

1. Appealable decision. The appeal notice, read in context and particularly by reference to the COHID reference appearing on the refusal-of-leave notice, constituted an appeal against the 23 August 2011 decision refusing leave to enter. That was an immigration decision within s 82(2)(a) of the Nationality, Immigration and Asylum Act 2002, notwithstanding the notice’s imperfect reference to the earlier certificate.
2. Human rights claim. The statutory question is one of substance, not form. For an Article 8 claim of this kind, the claimant must assert that he should not be removed, facts capable of constituting existing or prospective private or family life, and that removal would interfere with that life. The claimant’s references to wanting to be with his family did not satisfy those requirements. His evidence showed limited contact, no established family life, no realistic prospective family life, and no dependency beyond ordinary emotional ties. He therefore had no in-country right of appeal under s 92(4)(a) of the Nationality, Immigration and Asylum Act 2002.
3. Alternative grounds. Had an in-country appeal existed, the First-tier Tribunal should have given the claimant an opportunity under rule 10 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 to seek an extension of time. The Tribunal could itself raise the absence of an in-country right of appeal, and the Secretary of State’s notice had also stated that any appeal had to be brought after removal.
4. Article 8 merits. The evidence did not establish the additional dependency required for family life between adult relatives. The unsupported assertion that removal would harm the claimant’s mental health did not undermine the certification. Applying the approach in Yogathas and ZT (Kosovo), the allegations had to fail.
5. Disposition. The decision to remove was not impugned and the First-tier Tribunal was right to decline to hear the appeal. The application for judicial review was dismissed.

Not stated in the judgment.