BA (Nigeria) v The Secretary of State for the Home Department

For a challenge to a section 94 certificate, the court must decide whether the human-rights claim would be bound to fail. A claim under the Immigration Rules may be hopeless, but any Article 8 claim outside the Rules must also be assessed. Relevant considerations include effective immigration control, the weight due to the Secretary of State’s assessment and whether private or family life was formed while immigration status was precarious. In that setting, removal will generally breach Article 8 only in exceptional circumstances. Where circumstances are neither exceptional nor very compelling, and removal would not produce unjustifiably harsh consequences, certification may stand.

The appellant, a Nigerian national, entered the United Kingdom in 2004 and remained after his immigration leave expired. He applied for indefinite leave to remain, relying on long residence, private life, family life and Article 8 outside the Immigration Rules. The Secretary of State refused the application and certified the human-rights claim as clearly unfounded.

Jay J, sitting in the Upper Tribunal (Immigration and Asylum Chamber), refused permission to apply for judicial review. The Court of Appeal granted permission to appeal only on the certification issue. The central question was whether the Article 8 claim was bound to fail, so that certification was lawful.

Decision

1. The appeal was dismissed. Moylan LJ gave the judgment, with which Asplin LJ and Haddon-Cave LJ agreed.
2. Although permission to appeal had been limited to certification, the court had to determine for itself whether the appellant’s human-rights claim was bound to fail. The claim under the Immigration Rules was clearly bound to fail because the appellant accepted that he did not meet the Rules’ requirements.
3. The remaining issue was whether removal would breach Article 8 outside the Rules. Relevant considerations included the strong public interest in effective immigration control, the weight to be given to the Secretary of State’s assessment and the fact that private or family life established while immigration status was precarious will ordinarily engage Article 8 only in exceptional circumstances. The court applied the approach stated in Agyarko v SSHD [2017] UKSC 11.
4. The court considered whether the circumstances were exceptional, whether there was anything very compelling and whether removal would cause unjustifiably harsh consequences. The appellant’s family and private life in the United Kingdom, immigration history, education, claimed ties to the United Kingdom and reduced ties to Nigeria, and relationship with his partner could not even arguably establish that removal would be disproportionate.
5. Jay J was therefore right to conclude that there was no arguable basis for challenging the certificate and that the proposed judicial review claim was hopeless. The appeal was dismissed.

1. Court of Appeal (Civil Division) — On 1 November 2018, dismissed the appeal against the refusal of permission to apply for judicial review. Permission to appeal had been granted only on the certification issue.
2. Upper Tribunal (Immigration and Asylum Chamber) — Jay J refused permission to apply for judicial review on 3 March 2016, holding that there was no arguable basis for impugning the certificate and no arguable flaw in the Article 8 assessment.