JT, R (on the application of) v The Secretary of State for the Home Department (s.94B NIAA 2002 Certification)

Certification under Nationality, Immigration and Asylum Act 2002, section 94B, may lawfully require an Article 8 appeal to be pursued from abroad where there is no real risk of serious irreversible harm during the temporary separation.

The decision-maker should assess the substantive Article 8 case. Its strength may itself reveal a risk of such harm. General assertions about the distress caused by family separation, including separation from children, are insufficient. The claimant must identify evidence or circumstances showing that the impact will exceed that ordinarily anticipated during temporary separation.

De Souza Ribeiro v France does not require an automatically suspensive remedy whenever an Article 8 claim is arguable. Effective judicial review can provide the necessary procedural safeguard.

The applicant, a Sri Lankan national liable to deportation following criminal convictions, sought permission to bring judicial review of the Secretary of State’s decision of 2 March 2015. The decision refused his Article 8 claim and certified it under section 94B of the Nationality, Immigration and Asylum Act 2002, with the consequence that any appeal could be pursued only after his removal.

He relied on the effect of separation from his British spouse and child, and on De Souza Ribeiro v France [2012] ECHR 2066. He also sought a stay pending a Court of Appeal judgment in R (on the application of Byndloss and another) v SSHD [2015] EWCA Civ 678.

The central issue was whether certification exposed the family to a real risk of serious irreversible harm and was therefore arguably unlawful.

1. Permission to bring judicial review and the requested stay were refused. The certification decision was unarguably lawful. The Tribunal also refused permission to appeal to the Court of Appeal and made an anonymity order.

2. Section 94B of the Nationality, Immigration and Asylum Act 2002 contemplates that removal may temporarily separate a person from family members, including children, while an out-of-country appeal is pursued. It also contemplates that some such appeals may succeed. Those possibilities do not, without more, establish serious irreversible harm.

3. The strength of the underlying Article 8 case is relevant to certification. A strong substantive case may disclose a risk of serious irreversible harm even where the claimant has not separately articulated it. The Secretary of State was therefore entitled to consider the substantive Article 8 claim before addressing certification. On the material before her, she had considered the child’s best interests and the relevant Immigration Rules exceptions in sufficient detail.

4. Where a claimant relies on the effect of temporary separation, general assertions of distress are insufficient. There must be specific evidence or engagement with why the absence pending an overseas appeal creates a real risk of serious irreversible harm. The evidence before the Secretary of State did not show that the child would suffer an impact beyond that generally expected from temporary separation. The applicant had already been separated from the child while on remand, in prison and immigration detention, without identified evidence of the relevant impact.

5. De Souza Ribeiro v France [2012] ECHR 2066 did not establish that every non-manifestly ill-founded Article 8 claim requires an automatically suspensive remedy. The majority required adequate procedural safeguards before an independent and impartial domestic forum. Judicial review was capable of supplying that safeguard, including where evidence of serious irreversible harm had been overlooked or materially misassessed.

6. Nunez v Norway [2011] ECHR 1047 was distinguishable. It concerned an exclusion order preventing the parent’s return for two years, whereas this applicant could return if his appeal succeeded.

7. The Court of Appeal’s grant of permission in R (on the application of Byndloss and another) v SSHD [2015] EWCA Civ 678 did not require either permission or a stay in this case, particularly as the Court of Appeal had expressed no definitive view that the grounds were arguable.

• Upper Tribunal (Immigration and Asylum Chamber) Refused permission to bring judicial review of the Secretary of State’s 2 March 2015 refusal of the applicant’s Article 8 claim and section 94B certification.
• Prior judicial stage Not stated in the judgment. The impugned decision was an administrative decision of the Secretary of State.