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

A court should not generally review a deportation decision where the claimant has a statutory right of appeal, even if certification means that the appeal may be brought only after removal. A certification decision under section 94B of the Nationality, Immigration and Asylum Act 2002 must address whether removal pending appeal would breach section 6 of the Human Rights Act 1998, including relevant procedural and substantive Article 8 rights. Focusing only on serious irreversible harm may arguably apply the wrong test. At the permission stage, an arguable error may justify permission where the court cannot be sufficiently certain that it is immaterial.

The claimant, a Nigerian national liable to automatic deportation following criminal convictions, challenged the Secretary of State’s decision to deport her, certify her human rights claim under section 94B of the Nationality, Immigration and Asylum Act 2002, and detain her. Permission had previously been refused by Hamblen J. The renewed application principally concerned certification. The claimant argued that she had not received notice and that the Secretary of State had applied the wrong legal test. The central issues were whether the deportation decision should be reviewed by judicial review despite the statutory appeal route, and whether the certification decision lawfully addressed the effect of removal pending appeal on her Article 8 rights.

1. Permission granted in part. Permission to apply for judicial review was granted only in relation to the Secretary of State’s decision to certify the claimant’s human rights claim.
2. The court declined to review the deportation decision because the claimant had a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. That remained so even though, by reason of certification under section 94B, the appeal could be exercised only after the claimant had left the United Kingdom. The court relied on R. (on the application of Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744.
3. Section 94B required consideration of whether removal pending determination of an appeal would be unlawful under section 6 of the Human Rights Act 1998. That included consideration of procedural and substantive rights under Article 8. The reasoning in R. (on the application of Kiarie) v. Secretary of State for the Home Department [2015] EWCA Civ 1020 made it arguable that a focus on serious irreversible harm alone involved an erroneous approach.
4. The court did not determine the merits of that challenge. Although the Court of Appeal in Kiarie had treated the error as immaterial and dismissed the claim, the court could not be sufficiently certain at the permission stage that the same conclusion would follow here, particularly given the Article 8 issues concerning the claimant’s British citizen son.
5. The challenge to detention was dependent on the certification challenge. The other submissions did not justify permission.

Permission had previously been refused by Hamblen J on 9 July 2015. On renewal, the High Court granted permission on the limited certification issue.