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

For a certification under section 94 of the Nationality, Immigration and Asylum Act 2002, a claim is not clearly unfounded if there is at least one legitimate view of the facts or law on which it may succeed. A fresh claim must contain materially different submissions which, taken with earlier material, create a realistic prospect of success notwithstanding the earlier rejection. In reviewing the Secretary of State’s assessment, the court asks whether the correct question was addressed with anxious scrutiny and whether the conclusion was rational. In Article 8 deportation cases, the child’s best interests and the effect of separation from a parent must be properly considered. Detention pending removal must comply with the Hardial Singh principles, including reasonable duration and reasonable diligence.

The claimant challenged the certification of his asylum and human rights claim as clearly unfounded, the refusal to treat further submissions as a fresh claim, and the lawfulness of his detention pending deportation to Cameroon. His case relied principally on his relationship with his British wife, son and stepdaughter, alleged risks on return, mental health evidence and Article 8 family and private life considerations.

The claimant had previously appealed unsuccessfully against a deportation decision, and his appeal rights were exhausted in December 2012. Judicial review proceedings were later brought against the certification and fresh-claim decisions. The central issues were whether the decisions were unlawful and whether his detention complied with the applicable principles.

1. Certification and fresh claim. The court applied the principles in ZL [2003] EWCA Civ 25 and the fresh-claim approach explained in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535 and MN (Tanzania), R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 193. The Secretary of State had to address whether an independent tribunal might allow the claim or reach a different conclusion on the new material taken with the old.
2. Child and family considerations. The claimant showed arguable grounds concerning paragraph 399(a) of the Immigration Rules, particularly the effect of removal on his British son and stepdaughter and the child-welfare duty under section 55 of the Borders, Citizenship and Immigration Act 2009, informed by ZH (Tanzania). The remaining paragraph 399(b), paragraph 399(A), exceptional-circumstances and Article 3 and Article 8 arguments disclosed no arguable error. The Secretary of State had considered the relevant evidence and reached rational conclusions.
3. Detention. Applying R(I) Hardial Singh v Governor of Durham Prison [1983] EWHC 1, as summarised in Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12, the detention was lawful. The Secretary of State intended to deport the claimant, the period was reasonable, and the claimant’s offending, use of aliases, immigration history and failure to co-operate justified detention.
4. The application was granted in relation to the paragraph 399(a) ground and otherwise refused. Costs were reserved and directions were to be agreed.

The judgment describes earlier immigration and tribunal proceedings, including dismissal of the claimant’s appeal against deportation and refusal of permission to appeal by the First-tier and Upper Tribunals. The present court determined the outstanding judicial review grounds.