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

A certification under section 94 of the Nationality, Immigration and Asylum Act 2002 is unlawful where the Secretary of State’s assessment of an Article 8 claim fails to subject material evidence to proper and anxious scrutiny. The best interests of affected children require assessment of both the direct effect of a parent’s deportation and any further harm caused by the remaining parent’s impaired ability to care for them.

A later decision letter which changes, rather than merely clarifies, the basis of the original decision during litigation must be viewed with considerable scepticism. It cannot cure an assessment which relied on an irrelevant option, namely that a partner and children could accompany the deportee abroad where that approach had been conceded to be wrong.

The applicant, a Moroccan national subject to a 1999 deportation order following a serious criminal conviction, sought revocation of that order. The Secretary of State refused and certified his Article 8 claim as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002, giving him only an out-of-country appeal.

Earlier proceedings concerning deportation had reached the Court of Appeal in DH (Jamaica) and AB (Morocco) v SSHD [2012] EWCA Civ 1736. In seeking revocation, the applicant relied on elapsed time and an independent social-work report about the effect of permanent separation on his children and their mother’s capacity to care for them. During judicial review, the Secretary of State issued a supplementary letter.

The central issue was whether the certification decision lawfully assessed the children’s best interests and the Article 8 claim.

1. Claim allowed. The Upper Tribunal quashed the Secretary of State’s decision certifying the applicant’s claim as clearly unfounded.

2. The section 94 test is objective. A claim is clearly unfounded only if it cannot succeed on any legitimate view. Where primary facts are not disputed, a claim with a realistic prospect of success cannot rationally be certified.

3. The evidence before the Secretary of State required consideration of the full extent of harm to the children. This included not only separation from their father, but also the additional effect of their mother’s likely deterioration in mental health and consequential reduced capacity to care for them. The decision letters did not sufficiently address that secondary impact when weighing the children’s interests against the public interest.

4. The supplementary letter did not merely amplify the original reasons. It replaced an approach in the initial letter which treated accompanying the applicant to Morocco as an available option for his wife and children. Because it was produced during litigation and changed the decision’s basis, it was to be treated with considerable scepticism when assessing the original decision’s legality.

5. The respondent had taken account of irrelevant factors, failed properly to consider a material factor, and had not conducted proper anxious scrutiny. The respondent neither showed that those errors were immaterial nor contended that only one rational outcome was possible.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review allowed; the section 94 certification was quashed.
• Court of Appeal: In earlier litigation, DH (Jamaica) and AB (Morocco) v SSHD [2012] EWCA Civ 1736, the applicant’s appeal concerning deportation was dismissed.