England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 December 2015

Nicholas Lavender QC:

1. This is a renewed application for permission to apply for judicial review. The Claimant is a Nigerian national who was born on 24 May 1980. She first entered the United Kingdom in 2001 or 2003, but overstayed and was removed on 23 February 2006. She returned in March 2006 on a visitor's visa and overstayed again.
2. The Claimant married a British citizen, Adewale Aiyeola, on 30 October 2004. She and her husband separated in 2005, but reunited in 2006. On 5 November 2006 the Claimant had a son, who is a British citizen. The Claimant's husband is not her son's father, but the three of them live together.
3. The Claimant was convicted of fraud-related offences on 17 March 2012 and 25 July 2012. She was sentenced to 2 years' imprisonment. Pursuant to section 32 of the UK Borders Act 2007, she was liable to automatic deportation. The Secretary of State served a notice dated 24 November 2014 of her decision to make a deportation order in respect of the Claimant.
4. On 23 December 2014 the Claimant made a human rights claim. On 30 January 2015 the Secretary of State refused that claim and certified it pursuant to section 94B(2) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), which provides as follows:

"The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P's claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention)."

5. Pursuant to section 92(3)(a) of the 2002 Act, the effect of this certificate is that, while the Claimant can appeal to the First-tier Tribunal against the decision to deport her, she can only do so after she has left the United Kingdom.
6. On 25 February 2015 the Claimant was arrested and detained. (She has since been released.) On 26 February 2015 the Claimant made further representations, but the Secretary of State explained in a letter of 10 March 2015 why she had decided not to reverse her previous decision to deport the Claimant. The letter of 10 March 2015 did not contain any express reconsideration of the decision to certify the Claimant's claim.
7. This application was commenced on 10 March 2015. The Claimant sought permission to apply for judicial review of the Secretary of State's decisions: to deport her; to certify her human rights claim; and to detain her. Permission was refused by Hamblen J. on 9 July 2015.
8. The essence of this application is the challenge to the decision to certify the Claimant's human rights claim:

i) It would not be appropriate for this court to review the decision to deport the Claimant, since the Claimant has a right of appeal against that decision under section 82 of the 2002 Act. That is the case even though the effect of the decision to certify the Claimant's claim is that the right of appeal can only be exercised from abroad: see R. (on the application of Ali) v Secretary of State for the Home Department [2015] EWCA Civ 744.

ii) The challenge to the legality of the Claimant's detention is dependent on the challenge to the decision to certify her claim.

9. For the Claimant, Miss Hulse made three submissions, in writing and at the hearing.
10. First, Miss Hulse submitted that the Claimant had not been given notice that the Secretary of State was contemplating certifying her human rights claim. However, this was factually incorrect, as such notice was given by paragraph 26 of the notice of 24 November 2015.
11. Secondly, Miss Hulse submitted that in certifying the claim the Secretary of State had applied the wrong test. The reasons for the Secretary of State's decision to certify the Claimant's claim are set out in paragraphs 53 and 54 of the letter of 30 January 2015. There are similarities between those paragraphs and what the Secretary of State was quoted as saying when certifying a claim in R. (on the application of Kiarie) v. Secretary of State for the Home Department [2015] EWCA Civ 1020, at [17].
12. In that case, the Court of Appeal:

i) decided (at [73(ii)]) that the Secretary of State had erred because her decision focused erroneously on the question of serious irreversible harm and failed to address the statutory question whether removal pending determination of an appeal would be in breach of section 6 of the Human Rights Act and, in particular, whether it would be in breach of the Claimant's procedural or substantive rights under Article 8; and

ii) (at [79]) granted permission to apply for judicial review.

13. In my judgment, it is arguable that the Secretary of State made the same error in the present case.
14. In R. (on the application of Kiarie) v. Secretary of State for the Home Department [2015] EWCA Civ 1020, at [74] and [79] the Court of Appeal concluded that this error was not material and dismissed the claim for judicial review. It may be that that will be the outcome of the present case, but I cannot be sufficiently certain of that at this stage to refuse permission, given the issues raised in this case under Article 8, especially with regard to the Claimant's son, who is a British citizen.
15. Since I have decided to grant permission to apply for judicial review, I do not propose to say any more about those issues, which were the subject of Miss Hulse's third submission.
16. I grant permission to apply for judicial review, limited to the application for judicial review of the Secretary of State's decision to certify the Claimant's human rights claim.