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

A human-rights claim may be certified as clearly unfounded only where it has no realistic prospect of success. In an Article 8 case, the reviewing court must consider the questions an appellate tribunal would address, including interference, engagement, legality, legitimate aim and proportionality.

Family proceedings do not automatically require release from immigration detention. The court must apply the Hardial Singh principles and assess all relevant circumstances, including the prospect and timing of removal, diligence, the effect of detention, and the risk of absconding. The claim was dismissed because certification was rational and detention remained lawful.

The claimant, an Albanian citizen who had entered the United Kingdom unlawfully on several occasions, challenged removal-related decisions and his detention. The removal directions became academic after proceedings began. The remaining issues were whether his human-rights claim had been lawfully certified as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002, and whether his detention remained lawful while family proceedings concerning contact with his sons were contemplated and pursued.

The central questions were whether the Article 8 claim had a realistic prospect of success and whether the family proceedings made it apparent that removal could not be effected within a reasonable period.

1. Certification. The claim for judicial review of the certificate was dismissed. Applying R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, the court considered whether removal would interfere with family life, whether the consequences would engage Article 8, whether the interference would be lawful and pursue a legitimate aim, and whether removal would be proportionate. The reviewing court exercised careful supervisory scrutiny and asked the questions likely to arise before an appellate tribunal.
2. The claimant’s relationship with his sons meant that removal would reduce opportunities for contact, but the consequences did not attain the necessary gravity to engage Article 8. Even if Article 8 were engaged, removal pursued lawful immigration control and was proportionate. The case was not within the small minority of exceptional cases in which removal would be disproportionate. The certificate under section 94 of the Nationality, Immigration and Asylum Act 2002 was therefore rational and lawful.
3. Detention. The detention challenge was also dismissed. The four Hardial Singh principles, as summarised in R (I) v Secretary of State for the Home Department [2003] I.N.L.R. 196 and approved in R (Lumba) v Secretary of State for the Home Department [2011] 2 W.L.R. 671, required an intention to remove, detention for no longer than a reasonable period, release when removal within that period became impossible, and reasonable diligence and expedition.
4. Family proceedings did not automatically require release. The decision-maker could consider the claimant’s repeated unlawful entries, adverse immigration history and serious risk of absconding. That risk was of paramount importance because absconding would frustrate removal. The proceedings could properly continue while the claimant remained detained.
5. It never became apparent before permission for judicial review was granted that removal could not be effected within a reasonable period. Detention was regularly reviewed, and release followed reasonably promptly after permission was granted. The application for judicial review was dismissed, with costs submissions to be made in writing.

First-instance judicial review. The judgment states that permission was initially refused on the papers, interim relief was later granted, and permission to proceed with the amended challenges was subsequently granted. The present court dismissed the remaining certification and detention challenges.