Agumba, R (On the Application Of) v The Secretary of State for the Home Department

A challenge to certification of a human rights claim under section 94 may be arguable where the decision letter gives only cursory consideration to a British fiancée’s Article 8 rights, emotional ties and family-life interests. The court must consider whether all relevant factors were properly assessed. Permission to appeal may be confined to that issue where other grounds, including ten-year lawful residence and specific Immigration Rules grounds, are not pursued or disclose no realistic prospect of success.

The applicant, a Nigerian citizen, challenged refusals of indefinite leave to remain based on ten years’ lawful residence and private and family life. The Secretary of State also certified his human rights claim under section 94 of the Nationality Immigration and Asylum Act 2002 as clearly unfounded.

Permission to apply for judicial review was refused on the papers by Upper Tribunal Judge Smith and, after an oral hearing, by Jay J in the Administrative Court. Flaux LJ refused permission to appeal on the papers. Before the Court of Appeal, the applicant pursued only the challenge to certification, relying on the decision letter’s treatment of his British fiancée and their Article 8 rights.

Application granted on the certification issue only. The Court of Appeal did not determine that the certificate was unlawful. It decided only that the proposed challenge was arguable and should proceed to appeal.

1. The applicant did not pursue the ten-year lawful residence issue or grounds directed specifically to the Immigration Rules. He accepted that an appeal on those matters would be extremely difficult.
2. The remaining complaint was that the Secretary of State’s certification decision was irrational and inadequately reasoned. The decision letter appeared to contain only a short and cursory consideration of the applicant’s position.
3. At the time of the application, the applicant had a British fiancée. The Court considered it arguable that the decision letter failed properly or at all to take account of the fiancée’s Article 8 rights, the applicant’s emotional ties and the family-life rights of both parties. The suggestion that the fiancée could move with the applicant to Nigeria did not remove the need for a proper assessment of the relevant factors.
4. That arguable ground was sufficient to justify permission to appeal against Jay J’s refusal of permission to apply for judicial review, but only in relation to certification under section 94 of the Nationality Immigration and Asylum Act 2002.

1. Court of Appeal (Civil Division) Permission to appeal was granted on the certification issue only: [2017] EWCA Civ 2660.
2. Court of Appeal (Civil Division) Flaux LJ refused permission to appeal from Jay J’s decision on the papers on 6 March 2017.
3. High Court of Justice, Administrative Court Jay J refused permission to apply for judicial review after an oral hearing on 17 March 2016.
4. Upper Tribunal Upper Tribunal Judge Smith refused permission to apply for judicial review on the papers on 17 January 2016.