Onykwere v Secretary of State for the Home Department

For a clearly unfounded certification, the court must apply an objective test. If there is at least one legitimate view of the facts or law on which the claim may succeed, certification is unlawful. A fresh-claim decision is reviewed on Wednesbury grounds, but the Secretary of State must consider whether new material, taken with the earlier material, gives an independent tribunal a realistic prospect of success.

Where important independent evidence materially changes the picture concerning a child’s relationship with a parent, the child’s welfare and best interests must be treated as a primary, although not paramount, consideration in the Article 8 proportionality assessment. Such evidence must be addressed expressly and with anxious scrutiny.

The claimant, a Cameroonian national subject to a deportation order, challenged two decisions concerning his family and private life under Article 8 ECHR. The first decision refused revocation of the deportation order and certified his claim as clearly unfounded. The second rejected further submissions as not amounting to a fresh claim under paragraph 353 of the Immigration Rules and maintained the certification.

Permission for judicial review was limited to the assessment of the best interests of the claimant’s British son and step-daughter under paragraph 399(a). The central issues were whether the certification decisions were rational and whether the later independent evidence created a realistic prospect of success before an immigration tribunal.

1. Original certification. The requirements of paragraphs 398 and 399 of the Immigration Rules were cumulative and had to be applied as they stood when the decision was made. The Secretary of State lawfully found that the claimant had genuine and subsisting relationships with J and Jessica, but that another family member could care for them in the United Kingdom. The earlier evidence remained limited, and the claimant’s relationship with the children was insufficiently evidenced. The original certification was therefore lawful.
2. Best interests. Paragraph 399(a), as then worded, did not itself provide for an assessment of the child’s best interests. Nevertheless, that requirement formed part of the Article 8 proportionality assessment. The best interests of the children were a primary, although not paramount, consideration. It was not necessary to use those precise words in every decision, provided the reasoning showed that the interests had been properly considered.
3. Fresh evidence. By June 2014, independent evidence from J’s headmaster and GP, together with other evidence, materially altered the evidential position. It supported the existence of strong ties between J and the claimant, showed the effect of separation on J’s behaviour and mental health, and was relevant to the welfare of J and Jessica. The evidence had to be addressed directly, particularly because it contradicted the earlier findings on which the Secretary of State had relied.
4. Certification and fresh claim. The later claim was not clearly unfounded. On at least one legitimate view of the facts and law, an immigration tribunal might find the interference with the children’s Article 8 rights disproportionate. The Secretary of State’s contrary conclusion was irrational under the objective test in [2003] EWCA Civ 25 and [2009] UKHL 6.
5. Under paragraph 353, the new material was significantly different and, taken with the earlier material, created a realistic prospect of success. The Secretary of State had identified the correct test but had not applied anxious scrutiny to the new evidence. The decision to reject the further submissions as a fresh claim and to maintain certification was irrational. The claim for judicial review therefore succeeded in relation to the June 2014 decision.

The judgment describes an earlier contested permission hearing before Hamblen J, resulting in permission limited to the assessment of the children’s best interests under paragraph 399(a). This was a first-instance judicial review determination.