Malkit Singh & Anor v The Secretary of State for the Home Department

A human-rights claim may rationally be certified as clearly unfounded where the claimant identifies no feature capable of taking the Article 8 case outside the Immigration Rules. Long unlawful residence of less than the period specified by the Rules, without evidence of family life or other exceptional private-life factors, does not itself give the claim a realistic prospect of success.

A removal decision made after the September 2012 changes to the Rules must be decided under the Rules then in force, even where an earlier application had been refused under the former Rules.

The applicants were a married couple who claimed to have lived unlawfully in the United Kingdom since 1995. Their 2010 long-residence application had been refused because the respondent was not satisfied that the asserted residence was proved.

In 2013 the applicants made a further leave-to-remain application based on Article 8. The respondent refused it under the then current Rules and certified the human-rights claim as clearly unfounded under sections 94(2) and 94(3) of the Nationality, Immigration and Asylum Act 2002.

The applicants sought judicial review. They contended that their claimed long residence meant that the Article 8 claim had a realistic prospect of success and should not have been certified. The central issue was whether the certification decision was irrational.

1. The judicial-review application was dismissed. The respondent’s certification of the applicants’ human-rights claim as clearly unfounded was rational and was plainly open to her.

2. Following Singh and Khalid v SSHD [2015] EWCA Civ 74, a removal decision made after the further September 2012 changes to the Immigration Rules had to be considered under the new Rules. The applicants could not rely on the fact that their earlier application had been decided under the former Rules.

3. The only remaining challenge was to the rationality of certification. The applicants had advanced no material family-life case beyond their relationship with each other. They had provided no evidence of private-life circumstances beyond claimed long residence.

4. The Tribunal applied the approach stated from Nagre [2013] EWHC 720 (Admin) onwards. A decision maker need not conduct a detailed Article 8 analysis outside the Rules unless there is something out of the ordinary, or exceptional, beyond circumstances already addressed by the Rules. The Rules provided for success after more than 20 years’ residence or in prescribed circumstances. The applicants met neither route and identified no other factor capable of justifying leave outside the Rules.

5. On the evidence, no properly directed decision maker could regard the claim as other than clearly unfounded. Permission to appeal was refused under rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008. Costs were summarily assessed at £3,350.

• Upper Tribunal (Immigration and Asylum Chamber): Permission to bring judicial review was granted by Upper Tribunal Judge McKee. Upper Tribunal Judge Craig dismissed the substantive application and refused permission to appeal.
• Secretary of State: The applicants’ 2010 long-residence application was refused. Their later Article 8 claim was refused and certified as clearly unfounded under sections 94(2) and 94(3) of the Nationality, Immigration and Asylum Act 2002.