Ahmed Fathe Ayache, R (on the application of) v Secretary of State for the Home Department

A judicial review of certification under section 94B is a supervisory review of the decision made on the material then available. It is not a rolling examination of later evidence. Further evidence said to show that temporary removal would breach Article 8 should ordinarily be advanced to the Secretary of State through paragraph 353 of the Immigration Rules.

Certification must address whether temporary removal pending an appeal would be incompatible with Convention rights. The decision-maker should assess that question on the basis that the appeal will succeed and removal will therefore be temporary. A failure expressly to conduct that assessment may be legally flawed, but relief may be refused where the available evidence could rationally lead only to the conclusion that temporary removal would not breach section 6 of the Human Rights Act 1998.

The applicant challenged, by judicial review, the Secretary of State’s certification of his Article 8 claim under section 94B of the Nationality, Immigration and Asylum Act 2002. The certification required him to pursue any statutory appeal from outside the United Kingdom while a deportation order remained in force.

He relied on evidence filed after the certification decision to contend that his relationship with his partner and daughter had been misunderstood. He also contended that the Secretary of State had not correctly assessed the proportionality of temporary removal pending appeal. Permission had been granted on the basis that the current family position and the child’s rights required consideration.

The central issues were whether post-decision evidence could be considered in this judicial review, whether paragraph 353 of the Immigration Rules could address certification, and whether temporary removal would breach Article 8 rights.

1. Claim dismissed. The Tribunal held that the lawfulness of the section 94B certificate had to be assessed by reference to the evidence before the Secretary of State when the decision was made. Judicial review remained supervisory, even though the Tribunal had to consider for itself whether the relevant Convention rights would be infringed.

2. Later evidence was not available to undermine the historic decision merely because it was filed with the judicial-review claim. The Secretary of State could not be criticised for failing to consider material of which she had not been aware. Where an applicant wishes to rely on further information, paragraph 353 of the Immigration Rules supplies the appropriate route for fresh submissions.

3. Paragraph 353 could encompass the appropriateness of certification. A section 94B certificate is a response to a human-rights claim, directed to temporary removal pending appeal. Both the Secretary of State and the Tribunal must act compatibly with Convention rights when considering it.

4. The Secretary of State had not expressly assessed the proportionality of temporary removal, rather than the merits of deportation generally. That was a legal flaw. Applying Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020, the Tribunal considered whether temporary removal would interfere disproportionately with protected Article 8 rights, on the assumption that the statutory appeal would succeed and the removal would be temporary.

5. On the evidence available at the decision date, the applicant had no genuine and subsisting relationship with his partner, no contact with his son, and no evidence that temporary separation would affect his daughter differently from his imprisonment. There was no evidential basis for serious irreversible harm or another Article 8 breach. The only rational conclusion was that temporary removal would not breach section 6 of the Human Rights Act 1998; the certification error was therefore immaterial. The applicant was ordered to pay the respondent’s reasonable costs, if not agreed to be assessed by a Costs Judge.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review challenge to the section 94B certification of the applicant’s Article 8 claim. Permission was granted by Collins J on 18 May 2016. The Tribunal dismissed the claim and upheld the lawfulness of the certification.