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

For certification under section 96 of the Nationality, Immigration and Asylum Act 2002, a claimant cannot invalidate certification merely by identifying later legal developments. The Secretary of State must examine the facts and substantive legal position. Later authority assists only where it materially affects the factual position or assessment already made. Where relevant circumstances were fully considered previously and have not materially changed, certification may remain lawful.

The claimant, a Jamaican national with serious criminal convictions and children in the United Kingdom, sought judicial review of the Secretary of State’s decision to certify his case under section 96 of the Nationality, Immigration and Asylum Act 2002, accompanying refusal to revoke a deportation order.

Permission was limited to whether certification was lawful. The claimant relied on subsequent developments concerning EU citizenship rights, section 55 of the Borders, Citizenship and Immigration Act 2009, and Article 8 of the Convention.

1. Application dismissed. The certification was lawful. The stay preventing removal was lifted and the Secretary of State could take steps to deport the claimant.
2. Section 96 requires the four-stage approach identified in R (on the application of J) v The Secretary of State for the Home Department [2009] EWHC 705 Admin: the first three stages reflect the statutory language, followed by comprehensive consideration of all relevant circumstances when deciding whether, and if so how, to exercise the discretion.
3. Later legal development cannot invalidate certification by chronology alone. The Secretary of State must consider the facts and substantive legal position. The claimant’s links with his children had previously been found tenuous, and the evidence lacked credibility.
4. Ruiz Zambrano v ONEm [2011] EUECJ c-34/09 concerned dependent children and did not address the public-policy consequences of criminal conduct. Its later date therefore did not make certification unlawful because it did not materially alter the factual position.
5. The arguments based on section 55 of the Borders, Citizenship and Immigration Act 2009 and Article 8 had already been considered in substance and legal context. Later authorities did not establish an error in the Secretary of State’s approach.
6. Alternatively, any error would have been academic because there was no realistic prospect of success on reconsideration under the current Immigration Rules.
7. The claimant was ordered to pay the defendant’s costs, subject to the stated opportunity to make submissions.