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
		13th April 2016

SIMON BRYAN QC:


 


The Issues

1. In this amended claim for judicial review the Claimant, who is an adult male national of Cameroon born on 7 November 1975, challenges two decisions of the Secretary of State for the Home Department ("SSHD"):

i) The decision of the SSHD on 29 November 2013, in a letter of that date, to refuse the Claimant's application to have his Deportation Order ("DO") revoked and to certify that application as clearly unfounded (the "Certification Decision").

ii) The decision of the SSHD on 3 June 2014 that the Claimant's further submissions did not amount to a fresh asylum and/or human rights claim and that her previous decision to certify the Claimant's human rights claim should be maintained (the "Fresh Claim and Certification Decision").

2. Following a contested oral renewal hearing on 30 June 2015, in a reserved written judgment delivered on 3 July 2015 ([2015] EWHC 2501 (Admin)) Mr Justice Hamblin (as he then was) granted the Claimant permission for judicial review,

"limited to the [SSHD's] assessment, in her letters of 29 November 2013 and 3 June 2014, of the best interests of the Claimant's child, [J], and step-child, Jessica, undertaken by reference to paragraph 399(a) of the Immigration Rules."

3. The issues that arise may be summarised as being:

i) Whether, in that context, the SSHD's certification of the Claimant's asylum and human rights application as clearly unfounded under section 94(2) of the Nationality Immigration and Asylum Act 2002, as recorded on 29 November 2013 and maintained in her decision of 3 June 2014 was lawful (the "Certification Issue").

ii) Whether, in that context, the SSHD's decision that the Claimant's representations made on 17 February 2014 and 10 April 2014 were incapable of being a fresh claim by reference to paragraph 353 HC395 was lawful (the "Fresh Claim Issue").

The Factual Background

4. The Claimant claims to have entered the United Kingdom in December 2003 using a false French document.
5. On 12 January 2005 the Claimant came to the attention of the Home Office, having been convicted of "theft by an employee" under the name of Masantu Sumbu Moto. This conviction resulted in a sentence of 40 hours of community service.
6. On 24 March 2005 the Claimant was arrested for attempted fraud under the name Mosantu Sumbu Moto. His fingerprints were taken the next day and he was found to have the alias Kuechtche Moubme. The SSHD notified the Claimant that he was a person liable to be removed from the UK.
7. On 11 May 2005 the Claimant was convicted of three counts of forging a document other than a prescription for a scheduled drug and was sentenced to seventeen months imprisonment.
8. The Claimant was subsequently convicted on 20 May 2005 in the name of Mosantu Sumbu Moto of possession of an insurance document with intent to deceive for which he received a £70 fine and one day in a detention centre.
9. The SSHD then issued directions for the Claimant's removal on 1 December 2005 in the name of Alain Meboe.
10. The Claimant made an application for asylum under the name of Alain Antoine Kuechtche Moumbe on 6 December 2005. This application was subsequently refused by the SSHD and the Claimant commenced the appeal process against the decision. The SSHD cancelled the removal directions. On 4 January 2006 the Defendant refused the Claimant's asylum claim.
11. On 15 February 2006 the Claimant's representatives submitted a birth certificate which showed the Claimant's true identity to be that of Jude Okilo Onykwere, a male national of Cameroon, with a date of birth of 7 November 1975.
12. On 4 May 2006 the Claimant was notified of the refusal of his asylum claim, and on 12 June 2006 the Claimant appealed against the refusal of his asylum claim.
13. On 14 June 2006 an Immigration Judge found neither the Claimant nor his representative had been served with the asylum decision letter of the 4 January 2006.
14. In the same year the Claimant met Ms Restituta Kalemera, a British citizen, who subsequently became his wife ("Restituta" or "the Claimant's wife").
15. On 20 February 2007 the SSHD made a decision to reconsider the Claimant's asylum application.
16. On 19 April 2007, during the consideration of the claim by the SSHD, the Claimant was convicted of driving offences under the name of Mosantu Sumbu Moto, driving without insurance and otherwise than in accordance with a licence.
17. On 3 January 2008 the SSHD carried out a fingerprint check which confirmed that the Claimant was the same person as Mosantu Sumbu Moto and Alain Antoine Meboe.
18. Restituta gave birth to their son Child J, a British citizen; on the 2 November 2008 (J was accordingly 5 at the time of the subsequent decision letters). I have used "J" to represent the son's name throughout this judgment, as the parties did before me, for though no anonymity order has been made I, like the parties, consider this appropriate given his young age.
19. Since the Claimant's asylum application was outstanding for a lengthy period the Defendant granted him a right to work.
20. On 15 September 2009 the Claimant accepted a caution for "disorderly behaviour or threatening/abusive/insulting words likely to cause harassment alarm or distress".
21. On 26 November 2010 a notice of liability to deport was served on the Claimant and on 22 December 2010 the Claimant completed the questionnaire with supporting evidence to challenge his proposed deportation
22. A further asylum interview took place on 23 December 2011.
23. On 8 March 2012 the SSHD made a decision to deport the Claimant. The Claimant lodged an appeal on 14 March 2012.
24. In April 2012 the Claimant and Restituta were married and began co-habiting. In consequence the Claimant has two step-daughters, Jessica (16 in 2013) and Margaret (20 in 2013), both British citizens.
25. The Claimant's appeal against his deportation was dismissed on 23 October 2012. The Claimant had appealed on the basis that the deportation decision breached his rights under Articles 2, 3 and 8 ECHR. The First Tier Tribunal (Immigration Judge Emerton), concluded amongst other matters that the Claimant lacked credibility: his asylum claim had immediately followed the decision to deport him, he had used a false name and his actions were at odds with those of a genuine asylum-seeker. The evidence before the Judge was notably sparse in terms of his relationship with his wife, and in relation to any ties with his son J and his step-daughters Jessica and Margaret. In this regard the Judge stated, amongst other matters:

"As for family and private life in the UK ... the appellant is still not a credible witness, and the Tribunal has difficulty placing any weight upon his assertions. However he does at least have the benefit of the supporting witness evidence of Ms Restituta Kalemera, albeit that her evidence does not go very far, and he is named on his son [J's] birth certificate. In the circumstances, the Tribunal is not prepared to draw inferences as to the appellant's life in the UK without direct evidence to support vague and generalised assertions – indeed this would apply in most cases, the more so when an appellant has shown himself to be unworthy of belief" [49];

"However the Tribunal accepts that the appellant has had some sort of a relationship with Ms Kalemera, since an unspecified time after May 2006 (described only as "almost six years"). However, there is very little evidence concerning the strength of their relationship. Quite plainly, whatever relationship they have, would have been established and consolidated when the appellant's own status was decidedly precarious, and there is no suggestion that Ms Kalemera was not fully unaware this. Thus, they were both aware that the appellant was liable for deportation, or at least removal, they had a child, and latterly married, knowing that at any moment the appellant might be deported or removed. There is no direct evidence suggesting that the birth of Ms Kalemera's son did anything to strengthen their relationship." [50]

"…Ms Kalemera's statement is largely silent on any aspects of their life together, or indeed the appellant's involvement with their son. On the latter point, other than two instances of his helping her around the home when she was incapacitated and could not look after herself (or look after [J], on the second occasion) there is no information, other than a generalised and un-explained suggestion that she would not know what to do without him. She added nothing in oral evidence, and has provided no evidence of any particular bond between the appellant and her son. There is no evidence of any bonds at all between the appellant and Ms Kalemera's daughters. The appellant himself said nothing in oral evidence about married life or fatherhood, other than to state that whilst he retains his old (NAAS) address, he now spent most of his time at his wife's address…His interview and witness statement provide remarkably little information, other than indicating some recent involvement with childcare when his wife is working, and taking his son to and from nursery." [51]

"The Tribunal was struck by the complete absence of any assertions by the appellant of fatherly feelings towards [J], and the fact that the only express involvement in [J's] upbringing which described was the sort of care (recently provided, evidently in the period when he was waiting for his appeal to be heard) which could equally be provided by a paid child-minder… There are strong indications that it is the proximity of the appeal hearing which has prompted the appellant to increase his involvement in the life of Ms Kalemera and their son [J], rather than any pre-existing or long term commitment to the family unit. The Tribunal also noted that the appellant has expressed no concern that his daughter in Cameroon is being brought up in his absence, and evidently considered that the occasional telephone call was all that was required on his part to discharge his personal duties. There is little evidence of any stronger sense or fatherhood, or a genuine wish to be involved, in the case of [J]." [54]

"…There is little evidence suggesting any well-established private life in the UK, and in any event the appellant is not a witness whose uncorroborated account should be afforded any weight at all. There is very little evidence to support any conclusion that family life with his wife is at all substantial. As for ties with his son, other than generalised assertions, the only evidence relates to the appellant helping out on one occasion when the boy's mother was incapacitated, and assisting with child care and transport to and from the nursery so that his wife can work. Indeed, the main concern expressed appears to be that if he was not available as an unpaid child-minder, his wife might have to give up work. The Tribunal considers that there is no credible evidence supporting any conclusion that there are strong emotional bonds between father and son. Especially in view of the lack of probity which the appellant has displayed generally, it does not find him a credible witness and is not prepared to make any assumptions as to the nature of his family or private life in the UK unless presented in a clear and credible way, and preferably corroborated. Most of the evidence of life in the UK is far from clear, and is significantly lacking in important details." [55]

26. After dismissing the deportation appeal [67], the Judge then considered the remaining issue for the Tribunal, in conducting its own balancing exercise, namely whether the decision breaches Article 8 ECHR. The Judge identified relevant Article 8 case law and statutory provisions including EB (Kosovo) v SSHD[2008] UKHL 41, section 55 of the Borders Citizenship and Immigration Act 2009, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 and Omotunde (best interests – Zambrano applied – Razgar) Nigeria [2011] UKUT 00247 (IAC). He concluded that the decision did not breach Article 8. He expressed his conclusions in the following terms [82]:

"Overall, in conducting the balancing exercise required when considering proportionality, the Tribunal has come to the conclusion that, on the particular facts of this case, the public interest in expelling a criminal offender (especially when there was no right to enter the UK in the first place) outweighs the respect to be given to the family life of the appellant, his wife, and his child. Although family life cannot reasonably be expected to be enjoyed elsewhere, this does not prejudice protected rights in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. Deportation would be a proportionate response to the offending."

27. The evidence on the Article 8 aspects was again notably sparse. In this regard the Judge stated, amongst other matters (at paragraphs 77 to 79):

"77. The key to the appellant's Article 8 case is the fact that his son, [J], is a British citizen. Applying the structured approach suggested in Omotunde, there are plainly strong public interest arguments to expel the appellant as the non-natural parent. The Tribunal must decide whether deportation is a "necessary, proportionate and a fair balance between the rights to respect for family life of the appellant and the child and the particular public interest in question". In many cases, doubtless the vast majority, the rights of a child who is a British citizen will be paramount in leading to a conclusion that deportation is disproportionate. However, each case turns on its own facts, and the case law recognises that there will be exceptions. The reality is, on the facts of this case, that the appellant would find it very difficult to see Kalemera, and their son, for the foreseeable future, should he be deported; even if (perhaps in ten years' time) he can apply for revocation.

78. However, the Tribunal found this a troubling and unusual case. Whilst it has accepted that the appellant has had a son in the UK (who is a British citizen) since November 2008, and there has plainly been some contact and latterly a role in the child care, there has been nothing which indicates to the Tribunal of substantial emotional ties which one would hope to see between father and son…

The fact that the marriage has been so recent (especially as the child was born almost four years ago), the appellant's involvement so late, and the evidence so thin, does not suggest that the appellant plays any key emotional role in the family group. There is certainly no credible evidence of that. Whilst the Tribunal accepts that the future development of a real family life is important (R(Ahmadid) v SSHD EWCA Civ 1721), the Tribunal does not accept that the evidence in this case supports any real likelihood of strong emotional ties being established in the future between father and son.

79.The Tribunal has had to ask itself the difficult question (not satisfactorily addressed by the appellant) as to the likely consequences of the appellant's departure from the family home on his wife and son, albeit after a relatively recent (and part-time) arrival there. The Tribunal considers that the evidence suggests a very limited impact. Importantly, the Tribunal does not consider that there is any evidence suggesting that the absence of the appellant would have a significant emotional affect on the child. That is not a view expressed lightly, in view of the general importance of the parent-child relationship, but there is an absence of evidence (which one would expect to see) of such a relationship. Plainly deportation would have some impact, and it might be expected to be very disruptive in the short term. However, the Tribunal is not satisfied that any family life is such that Ms Kalemera's protected rights, or those of [J], would be interfered with to any great extent in the longer term. The facts of this case are indeed unusual."

28. I have set out the Judge's findings on the evidence at some length, as Mr David Jones, counsel for the Claimant, draws attention to the fact that the findings of the Immigration Tribunal were necessarily informed by reference to the evidence that was available at the date of the hearing. He also submits, as I address in due course below, that the evidence subsequently adduced on behalf of the Claimant, especially at the time of the Fresh Claim and Certification Decision, painted matters in a very different light, as a result of which, he submits, the SSHD was not in a position to certify the claim as totally unfounded nor conclude that the Claimant's submissions did not amount to a fresh claim or create a realistic prospect of success at an appeal in accordance with the test laid out at paragraph 353 of the Immigration Rules. In that context Mr Jones also submits that the SSHD was wrong to place reliance on particular findings of the Immigration Tribunal in support of her decisions (in particular the Fresh Claim and Certification Decision on 3 June 2014), in the light of the further evidence before the SSHD, including from third parties.
29. Returning to the chronology of events, on 12 December 2012 the Claimant became "appeal rights exhausted" having applied unsuccessfully for permission to appeal to both the First-Tier and Upper Tribunals.
30. On 10 July 2013 the Claimant made an application for revocation of the deportation order and leave to remain under Article 8 ECHR adducing further evidence including a letter purporting to emanate from the Claimant's step-children (Jessica and Margaret) and Child J attesting to the strength of their connection. The Defendant received the application on 22 July 2013. The Defendant subsequently rejected the application for lack of passport sized photographs. The documents were returned on 2 September 2013.
31. However on 24 October 2013 the SSHD informed the Claimant's legal representatives that the photographs had in fact been submitted with the application and the Home Office had been wrong to reject it. SSHD advised the Claimant that if he submitted a new application then it would be valid from the date of his rejected application (10 July 2013). It appears that the Claimant has not, to date, submitted a new application.
32. On 25 October 2013 the SSHD made a Deportation Order in respect of the Claimant, and on 15 November 2013 the Claimant was detained and served with the Deportation Order when he reported to the UKBA. On the same day an application for revocation of the deportation order was submitted by the Claimant's legal representatives; the application was substantively the same as the one submitted on 10 July 2013.
33. On 25 November 2013 the Claimant was informed that removal directions had been set for his removal to Cameroon on 7 December 2013.
34. On 27 November 2013 the Claimant's legal representatives sent the Defendant a pre-action protocol letter challenging the decision to set removal directions for 7 December 2013 in circumstances where the Claimant had outstanding representations for revocation of the deportation order and grant of leave to remain on Article 8 grounds, of which the Defendant was aware.
35. On 29 November 2013 the Defendant issued a decision letter refusing the Claimant's application for revocation of the deportation order and certifying the Claimant's case as clearly unfounded under section 94 of the Nationality Immigration and Asylum Act (i.e. the Certification Decision), thereby granting the Claimant an out of country right of appeal (and precluding the Claimant from appealing the decision in the UK).
36. On 6 December 2013 Judicial Review proceedings were commenced challenging the Certification Decision. Removal directions were cancelled.
37. On 30 January 2014 the Defendant provided an Acknowledgment of Service and Grounds of Defence.
38. On 17 February 2014, the Claimant made further written submissions to the SSHD.
39. On 10 March 2014 Mr Justice Phillips refused the Claimant permission to apply for judicial review of the Certification Decision, on the papers.
40. On 10 April 2014 further representations were made to the SSHD by the Claimant's legal representative enclosing inter alia, Witness Statement of Restituta Kalemera dated 8 April 2014, a Medico-Legal Report by Dr Iona Steen dated 19 March 2014, and correspondence from Child J's school and General Practitioner (as addressed in more detail below).
41. On 8 May 2014 the Claimant was granted bail with tagging and reporting restrictions.
42. By letter dated the 3 June 2014 the Defendant rejected the Claimant's latest submissions and refused to accept that they constituted a fresh claim under paragraph 353 of the Immigration Rules and maintained the decision to certify the Claimant's case as clearly unfounded (i.e the Fresh Claim and Certification Decision).
43. There followed delay in the Claimant obtaining legal funding. Thereafter by order made by HHJ Walden-Smith on the 20 March 2015 the Claimant was granted permission to amend his grounds for judicial review, with the Defendant being permitted then to serve amended Summary Grounds of Defence if so advised.
44. On 14 May 2015 the Claimant provided Amended Grounds for Judicial Review addressing the Fresh Claim and Certification Decision.
45. Thereafter, as already noted at paragraph 2 above, on 3 July 2015, following a contested oral renewal hearing on 30 June 2015, Mr Justice Hamblin granted permission for judicial review

"limited to the Defendant's assessment in her letters of 29 November 2013 and 3 June 2014, of the best interests of the Claimant's child, [child J], and step-child Jessica, undertaken by reference to paragraph 399(a) of the Immigration Rules".

It should be noted that this was but one of the grounds in respect of which permission was sought (others included separation of husband and wife, aspects of the Claimant's past in Cameroon, and the Claimant's mental health).

Applicable legal principles

46. The applicable legal principles in relation to the issues arising, which I address below, were essentially common ground between the parties, subject only to the emphasis placed upon particular decisions by each party.

Rules in relation to deportation

47. On 9 July 2012, the Immigration Rules were substantially amended to create a new framework for considering claims based on Article 8 ECHR. When the two challenged decisions were taken, paragraph 398 of the Immigration Rules stated as follows, so far as relevant:

"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

[…]

(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; […]

[…]

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors."

48. Paragraph 399 then stated as follows, so far as relevant:

"399. This paragraph applies where paragraph 398(b) or (c) applies if

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British citizen; […]

and […]

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK."

49. In Ogundimu (Article 8: New Rules: Nigeria) [2013] UKUT 60 (IAC), the Upper Tribunal considered whether the new paragraph 399(a) of the Immigration Rules, cited above, allowed for consideration of where the best interests of the child lay, as was required of the SSHD pursuant to her duty under Article 3 of the UN Convention on the Rights of the Child 1989. The Upper Tribunal, comprised of Blake J and Upper Tribunal Judge O'Connor, concluded that it did not. At paragraph 96 of their judgment, dated 28 January 2013, they stated:

"96. […] we agree that the terms of paragraph 399(a) of the Rules do not provide for a consideration of where the best interests of a child lies, and [Counsel for the Appellant] was correct to concede that the appellant could not succeed under this limb. However, when we come below to make our overall Article 8 assessment of the proportionality of the interference with the family life of the remaining family members we propose to attach little weight to this aspect of the rules, as we consider that its terms are in clear conflict with the respondent's duty under Article 3 UN Convention on the Rights of the Child 1989 to make the child's welfare and best interest a primary, albeit not the paramount, consideration. As is well known this duty has been imported into Article 8 considerations by case law, notably ZH Tanzania [2011] UKSC 4, as well as section 55 of the Borders, Citizenship and Immigration Act 2009. We doubt whether it is in any child's best interests to lose the contact and support with a caring and devoted parent simply because someone else can be found to care for them."

50. Subsequent to the decisions in the present case, paragraph 399(a) of the Immigration Rules was amended further on 10 July 2014. Since then, paragraph 399(a) has read as follows:

"399. This paragraph applies where paragraph 398(b) or (c) applies if

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British citizen; […]

and […]

(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and

(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported."

51. In the context of section 55 of the Borders Citizenship and Immigration Act 2009 and the interaction between it and Article 8 ECHR, Mr Jones referred to the determination of the Upper Tribunal in JO and Others (Section 55 duty) Nigeria [2014] UKUT 00517, and in particular paragraphs 6 to 12 thereof, with the reference to, and quotation from, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 (and what was said by Baroness Hale [26, 33-37] and Lord Kerr [46] in relation to Article 8 being interpreted in such a way that the best interests of relevant children are a primary consideration, while recognising that they may not be a paramount consideration), and Zoumbas v Secretary of State for the Home Department [2013] 1 WLR 3690.
52. In Zoumbas, supra at [10] Lord Hodge considered the interplay between the best interests of the child and Article 8 ECHR, and identified seven principles:-

"(1) The best interests of a child are an integral part of the proportionality assessment under article 8 of the Convention; (2) in making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration; (3) although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; (4) while different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; (5) it is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations; (6) to that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and (7) a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent."

Clearly Unfounded Certification

53. When a person makes an asylum and/or human rights claim, the SSHD may certify that claim as clearly unfounded: s. 94(2), Nationality, Immigration and Asylum Act 2002 ("the 2002 Act").
54. The House of Lords considered the "clearly unfounded" test in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6. Describing it as a "black and white test", Lord Phillips restated his discussion of the test in ZL & VL v SSHD & Another [2003] EWCA Civ 25 (in the context of the transitional provisions in section 115 of the Nationality, Immigration and Asylum Act 2002, which are in materially identical terms to section 94) [paras 22-23]. In ZL, Lord Phillips considered that the proper approach when determining whether a claim is 'clearly unfounded' is as follows (emphasis added):

"56. Section 115(1) empowers— but does not require— the Home Secretary to certify any claim 'which is clearly unfounded'. The test is an objective one; it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.

57 How, if at all, does the test in section 115(6) differ in practice from this? It requires the Home Secretary to certify all claims from the listed states 'unless satisfied that the claim is not clearly unfounded'. It is useful to start with the ordinary process, such as section 115(1) calls for. Here the decision-maker will (i) consider the factual substance and detail of the claim, (ii) consider how it stands with the known background data, (iii) consider whether in the round it is capable of belief, (iv) if not, consider whether some part of it is capable of belief, (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.

58. Assuming that decision-makers— who are ordinarily at the level of executive officers – are sensible individuals but not trained logicians, there is no intelligible way of applying section 115(6) except by a similar process of inquiry and reasoning to that described above. In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded..."

55. Having restated this test in ZT (Kosovo), Lord Phillips added:

"23. Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational."

56. This formulation of the test in ZT (Kosovo) was applied by Sales J in R (P (Sri Lanka)) v SSHD [2009] EWHC 3095 (Admin):

"15. In approaching the question whether to certify a claim as clearly unfounded, the Secretary of State and the court have to have regard to the possibility that, on an appeal to the Asylum and Immigration Tribunal, a different conclusion might be reached upon the merits. In R (AK (Sri Lanka)) v Secretary of State for the Home Department [2009] EWCA Civ 447, the Court of Appeal addressed the relevant threshold for the prospect of success which has to be crossed: see in particular paragraphs [33] to [35]. As emphasised there, a case which is clearly unfounded is one with no prospect of success."

57. At paragraph 34 of the Court of Appeal's judgment in R (AK (Sri Lanka)) v SSHD [2010] 1 WLR 855, Laws LJ observed that "there is a difference, but a very narrow one" between a claim that is "clearly unfounded" and one that has no "realistic prospect of success":

"34. [...] A case which is clearly unfounded is one with no prospect of success. A case which has no realistic prospect of success is not quite in that category; it is a case with no more than a fanciful prospect of success."

58. Laws LJ concluded that this "very narrow" difference was "so narrow that its practical significance is invisible" (para. 34).
59. Mr Jones also referred to the materials relating to whether a matter was "manifestly unfounded", including withdrawn legislative materials (e.g. section 72(2)(a) Part IV Immigration and Asylum Act 1999 and paragraph 9(4)(a) and 9(5)(a) of Schedule 4 of the 1999 Act), a resolution in the context of the negotiations for the Maastricht Treaty in 1992, Atakaby v SSHD [2002] EWCA Civ 234 at [22] and Thangarasa and Yogathas v SSHD [2002] UKHL 36, [14] and [72]. Ultimately it was recognised in ZL, that the two phrases are interchangeable.
60. Thus, in considering the issue of lawfulness of the SSHD's certification of the asylum and immigration claims as clearly unfounded, the relevant test is whether the claim is in fact clearly unfounded in accordance with the guidance provided in ZL. Each case is to be viewed on its own facts and merits, the test is an objective one, it depends not on the SSHD's view;

"but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not"

(ZL, supra at [56]).

Fresh claim

61. Paragraph 353 of the Immigration Rules HC395 as amended, sets out the correct approach to material presented by way of further submissions after the dismissal of an asylum or human rights claim where there is no extant appeal:

"Fresh Claims

When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

had not already been considered; and

taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas."

62. The Court of Appeal considered the correct approach to the question whether further submissions amounted to a fresh claim in R (WM (DRC)) v. Secretary of State for the Home Department [2006] EWCA Civ 1495. Buxton LJ, with whom Jonathan Parker and Moore-Bick LJJ agreed, held:

"6. There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgments. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source.

7. The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v. SSHD [1987] AC 514 at p 531F."

63. The court confirmed that the decision remained that of the SSHD and a court reviewing such a decision was, therefore, limited to assessing it on a Wednesbury basis. A reviewing court would have to address the following questions:

"11. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

64. The court rejected the submission that it should follow the approach taken in certification cases of coming to its own view on the strength of the asylum claim. It was held:

"18. […] in borderline cases, particularly where there is doubt about the underlying facts, it would be entirely possible for a court to think that the case was arguable […] but accept nonetheless that it was open to the Secretary of State, having asked himself the right question and applied anxious scrutiny to that question, to think otherwise; or at least the Secretary of State would not be irrational if he then thought otherwise."

65. In AK (Afghanistan) v. Secretary of State for the Home Department [2007] EWCA Civ 535 the Court of Appeal held that the question which the SSHD must ask himself is (per Toulson LJ at paragraph 23):

"whether an independent tribunal might realistically come down in favour of the applicant's asylum or human rights claim, on considering the new material together with the material previously considered. Only if the Home Secretary is able to exclude that as a realistic possibility can it safely be said that there is no mischief which will result from the denial of the opportunity of an independent tribunal to consider the material."

66. The same approach applies to the consideration of fresh submissions in relation to human rights claims as applies in asylum claims: R (Kurtaj) v. Secretary of State for the Home Department [2007] EWHC 221 (Admin), per Black J at paragraph 30.
67. In R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116, Carnwath LJ considered that there had been a shift in emphasis following the decision of the House of Lords in ZT (Kosovo) and suggested that the court should make up its own mind on the question whether there is a realistic prospect of success before an immigration judge. However, in R (TK) v Secretary of State for the Home Department [2010] EWCA Civ 1550, a differently constituted Court of Appeal (Lord Neuberger MR, Laws LJ and Wilson LJ) held that the Court of Appeal is bound to apply WM unless it is overturned by the House of Lords. In MN (Tanzania) v Secretary of State for the Home Department, a differently constituted Court of Appeal (Kay LJ, Moses LJ and Sullivan LJ) also held that WM and TK still apply in paragraph 353 cases.
68. Accordingly, it remains the case that the SSHD's conclusion as to whether further representations amount to a fresh claim can only be challenged on Wednesbury grounds.

Determination of credibility issues in certification and fresh claims

69. Mr Jones also draws attention to the case law and guidance where credibility issues arise in the context of certification and fresh claims. In this regards in ZL, supra, at [60], Lord Phillips observed:

"Where an Appellant's case does turn on an issue of credibility, the fact that the interviewer does not believe the Appellant will not, of itself, justify a finding that the claim is clearly unfounded. In many immigration cases findings on credibility have been reversed on appeal. Only where the interviewing officer is satisfied that nobody could believe the Appellant's story will it be appropriate to certify the claim as clearly unfounded on the ground of lack of credibility alone".

70. In this regard the SSHD's 'Asylum Process Guidance' entitled 'Certification under section 94' , which is to be found on the UKBA website, provides:

"It will be a rare case which will be certified on the basis of credibility alone. In the majority of cases, caseworkers will need to be able to certify on the basis that, even accepting the claimant's account as credible and taking that account at its highest, the claim is bound to fail. The most important thing in approaching credibility/false information issues is that the principle of relying on objective/unarguable information still applies".

71. In SA (Iran) v SSHD [2012] EWHC 2575 (Admin), a case concerning the disposal of fresh claim submissions pursuant to the application of a clearly unfounded certificate, the claimant had been the subject of adverse credibility findings at first instance, but had proceeded to support further submissions with evidence from her son who had not been party to those same. When commenting on the SSHD's rejection of that third party evidence HHJ Gilbart QC observed:

"21, Mr Mandalia [Counsel for the Defendant] argued that because the Claimant had given evidence about her husband's conduct and membership of the Basij, the evidence of her son added nothing, and could not make a difference. That approach by Mr Mandalia (which echoes that of the Home Secretary) is one which a moment's reflection will show is unarguable, if advanced as some rule of general application. In cases where credibility is in issue, the fact that a witness' account is corroborated by that of another witness can add to its credibility. Were it otherwise, prosecutors in criminal cases, or parties in personal injury actions, would not seek to call as many eye (or other) witnesses of events as can give relevant evidence, nor would Defendants in criminal cases advancing a defence of alibi be keen to call any supporting witnesses if they can do so. I find it concerning that so straightforward and long standing a concept as one witness giving support to another's credibility should be overlooked by the Home Secretary".

72. In the context of fresh claims, Mr Jones also refers to paragraph 6 of the judgment of Buxton LJ in R(WM (DRC)) v SSHD, supra, that I have already quoted at paragraph 62 above. Buxton LJ referred at paragraph 25, with approval, to the reasoning of Collins J in the lower court with regard to the weight attributable to evidence from third party sources stating:

"25, Collins J set out various reasons why both the article and its provenance might be questioned, but then continued, at his 15:

"Having said that, it is accepted that [the article] is not intrinsically incredible. The adverse credibility findings were indeed based upon material which was appropriate and which it was open to the adjudicator to hold against the claimant. On the other hand, if this newspaper article is genuine, it throws into great doubt the correctness of those adverse credibility findings. Hence it is crucial to whether there is, indeed, a prospect of success in any claim" (emphasis added).

I respectfully agree. Here again, if I were making the decision I would hold that there was a realistic prospect of an adjudicator accepting the validity of the article, as a result of which the original decision could hardly stand".

The Certification Decision of 29 November 2013

73. In the Certification Decision of 29 November 2013, the SSHD first set out the background facts (in terms consistent with the summary that has already been set out above). The SSHD then referred to letters from the Claimant dated 15 November 2013 and 27 November 2013 seeking revocation of the deportation order and supporting reasons, it being identified that the Claimant was seeking reconsideration in the light of the Claimant's application for further leave to remain, the "Claimant's Article 8 rights and his relationship with his British wife, son and step-daughters" and his risk of being tortured or killed on his return to Cameroon. The SSHD then listed the further materials submitted in support of the claim. Amongst other matters, these established the Claimant's marriage to Restituta, and that J, a British citizen was his son (albeit that such matters were already known to the SSHD as at the time of the hearing before the First Tier Tribunal, and were expressly referred to in the judgment).
74. The documentation referred to also included what was described by the SSHD as a "Letter of support from your client's step-daughters and son dated 1 July 2013" (the "Letter of 1 July 2013"). This, therefore, was a document that was not before the First Tier Tribunal. As the Claimant criticises what the SSHD was to say about the Letter of 1 July 2013 I will set it out in full:

"Re: Letter of support

Dear Sir/Madam

We are writing to support out step father's (Mr Jude Onykwere) immigration application.

Mr Onykwere, our step father, has been in our life for over seven years now since him and our mother Resti met in 2006- In 2008 we had an addition to our family, our little brother [J] – Since then they have been together growing stronger every day and as of 04 May 2012, they officially married which we whole heartedly supported them to do. We are all happy together as he has been there for us whenever needed, just like a father figure in our lives.

It would be very devastating to every member of this family not to have him around; we have a strong bond and have built an amazing father and child rapport by him.

Over the years he has been very supportive in helping our mother to look after us and bring us up in the best way possible; although now we are much older, we still need him and mostly our little brother [J] will not cope without a male role model in his life, we all believe that bringing up a boy in this country is ideally not a single mothers job thus we wouldn't want our younger brother to be robbed of such a privilege of having his father around to help him grow up in the correct manner, this would only prove detrimental and potentially have a very negative impact on him, which no one would wish on their own sibling.

Mr Onykwere our step father is a good man. He has been generous to us all and we would love to see him completely establish means of working to support all of us, something I am fully aware he wishes to do greatly.

We are appealing to whoever is dealing with his case to put oneself in our situation and consider the effect of splitting a family like ours apart. What happens to us, our little brother and our mother? Not only would it be unjust, it'll inevitably be very hard to deal with. Separating us will be nothing short of emotional torture and so we are appealing that one should reconsider, see that we have done nothing wrong to potentially be treated so harshly, and allow our father to stay with us.

We will be grateful if you look into this case with humanity and grant him his stay and if you need further information please do not hesitate to contact us.

Many thanks and kind regards,

Margaret Katanga, Jessica Katanga and [J] Onykwere"

[the letter bears two signatures said to be those of Margaret and Jessica]

75. After referring to Article 8(2) ECHR, the SSHD stated at paragraph 34:

"Whilst it is considered that the decision to remove your client to Cameroon will give rise to interference with his rights under Article 8 (and may not be in the best interests of his child), we are satisfied that the interference is in accordance with the permissible aim of the prevention of crime and disorder."

76. The SSHD then identified the terms of section 398 of the Immigration Rules and noted (as is common ground) that the requirements of paragraph 398(b) were met as the Claimant had been convicted on 11 May 2005 of 3 counts of forging a document, and was sentenced to a total of 17 months imprisonment. Accordingly the SSHD then noted that in considering the Claimant's claim she would consider whether paragraph 399 or 399A applied, and if not it would only be in exceptional circumstances that the public interest in deportation would be outweighed by other factors. She then considered paragraph 399(a) of the Immigration Rules, as then applied, stating:

"Paragraph 399(a) of the Immigration Rules specifies the criteria which must be satisfied in order for a parental relationship with a child to outweigh the public interest in deportation in line with Article 8 of the ECHR. The criteria reflect the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the United Kingdom as interpreted in recent case law, in particular ZH (Tanzania). In view of this, consideration has been given to the criteria in paragraph 399(a), and we have reached the following conclusions."

77. The SSHD noted that the Claimant had a 5 year old British son J (see 399(a)(i)), it was accepted that the Claimant was in a genuine and subsisting relationship with [J]" (see para 399(a)), and that it "would be unreasonable to expect [J] to leave the UK as he is British and he has lived here all his life" (see para 399(a)(i)(a)). However, applying the last criterion in paragraph 399(a) of the Immigration Rules, the Secretary of State concluded as follows (para. 41(d)):

"(d) it is considered that there is another family member who is able to care for [J] in the UK as he is currently living with his mother. [J]'s mother has provided his day to day welfare and support since he was born, before your client started to live with the family, and this will continue to be the case after your client is deported. Your client will be able to remain in contact with [J] from Cameroon via modern channels of communication, such as e-mail, telephone or letter and [J] could visit your client in Cameroon with his mother subject to financial constraints or once he is old enough to travel independently, should he choose to do so."

78. Mr Jones points out that there was no reference in the letter to advice that had been received from the Office of Children's Champion ("OCC") on 2 October 2013 (and which has now been disclosed to the Claimant) that:

"Mr Onykwere has lived with his son nearly 5 year old [J], all his life.

I do think there will be an impact on [J's] welfare if he is separated from his father by his removal from the UK. He is part of [J's] day to day life."

79. The SSHD accepted that the Claimant was in a "genuine and subsisting relationship with Jessica Alinda Katanga", his British step-daughter who was then 16-years old (para. 42). Again, the SSHD concluded that "there is another family member who is able to care for Jessica Alinda Katanga in the UK as she lives with her mother" and Jessica was also "in contact with her biological father who lives in the UK" (para. 43(d)).
80. At paragraph 46, the SSHD concluded:

"Having considered the factors in your client's case, it is not accepted that his right to family life outweighs the public interest in seeing him deported and therefore your client's deportation would not be in breach of Article 8 of the ECHR."

81. The SSHD then considered paragraphs 399(b). In that context she considered the Claimant's relationship with his wife, and his ties with Cameroon (see paragraphs 47 to 52) concluding that it was not accepted that his right to family life or private life outweighed the public interest in seeing his deportation.
82. The SSHD then considered, and rejected, the existence of any exceptional circumstances before turning to Article 8 and proportionality outside of the Rules (paragraph 61 and following). The SSHD noted the Claimant's marriage to Restituta, his son J, his two step-daughters Jessica and Margaret, and accepted that the Claimant had a family life with them, but did not accept that the decision to deport him would give rise to any interference with his right to family and private life. The SSHD then quoted from paragraph 54 of the Immigration Tribunal's determination:

"54. The Tribunal was struck by the complete absence of any assertions by the appellant of fatherly feelings towards [J], and the fact that the only express involvement in [J's] upbringing which he described was the sort of care (recently provided, evidently in the period when he was waiting for his appeal to be heard) which could equally be provided by a paid child-minder… The Tribunal also noted that the appellant has expressed no concern that his daughter in Cameroon is being brought up in his absence, and evidently considered that the occasional phone call was all that was required on his part to discharge his paternal duties. There is little evidence of any stronger sense of fatherhood, or a genuine wish to be involved, in the case of [J]."

83. At paragraph 69 the SSHD stated that it was therefore considered that the Claimant was already adept at maintaining a relationship with a child from overseas by means of telephone contact "and therefore he can continue his relationship with [J] in the same manner." The SSHD then quoted from paragraph 55 of the determination of the immigration judge:

"55. There is little evidence suggesting any well-established private life in the UK, and in any event the appellant is not a witness whose uncorroborated account should be afforded any weight at all… As for ties with his son, other than generalised assertions, the only evidence relates to the appellant helping out on one occasion when the boy's mother was incapacitated, and assisting with childcare and transport to and from the nursery so that his wife can work. Indeed, the main concern expressed appears to be that if he was not available as an unpaid child-minder, his wife might have to give up work. The Tribunal considers that there is no credible evidence supporting any conclusion that there are strong emotional bonds between father and son."

84. At paragraphs 71-72 of the Certification Decision, the SSHD considered the further evidence that had been submitted by the Claimant to support his Article 8 claim. The SSHD considered that the information contained in a further witness statement provided by the Claimant was "minimal" and that it was a "self-serving attempt to remain in the UK" rather than an attempt to "put across the facts of his relationship with his family" (para. 71). At paragraph 72 the SSHD stated as follows (including addressing the 1 July 2013 Letter as quoted above):

"It is also considered that, whilst your client claims that he pays an invaluable role within his family unit there is no other evidence to corroborate his statement. The supporting letters submitted state that he has a wife and son that he supports, however they do not expand upon this point to indicate how he provides this support. Perhaps more meaningfully there is no supporting statement from his wife to corroborate his statement that he supports her. Although there is a statement that is supposedly written by his step-daughters and son this is only signed by his two step-daughters. It is also noted that it appears to have been written in a rather professional manner that does not suggest it was composed by his step-children or son. It is considered that due to your client's history of using fraudulent documents in an attempt to make gain for himself he may be doing that on this occasion. It is also queried why, if [J] has such a strong bond with his father, he has not provided a letter or drawings to show how he feels about his father and how he would feel when he is removed to Cameroon. For these reasons, when taken into account with the findings of the family life and private life where it is considered unreasonable for a family and private life to be continued elsewhere."

85. Having cited further passages from the decision of the immigration judge (paras 73-74), the SSHD then stated (at paragraph 75):

"It is considered that your client has still provided no further evidence to show that his bond with Ms Kalemera and [J] goes further than him living with the family and undertaking day-to-day tasks around the home, however it is noted that they do have a relationship on some level and that his deportation will interfere with this."

86. The SSHD then quoted from paragraphs 78 and 79 of the immigration appeal decision (which are set out in full at paragraph 27 above) to similar effect. At paragraphs 79 to 81 the SSHD concluded:

"79. All factors mentioned in your letters dated 15 November 2013 and 27 November 2013 have been fully considered in your client's previous appeals and you have produced no new evidence that would alter the Immigration and Asylum Chamber's decision to dismiss your client's appeal.

80. Therefore, having considered the factors in your client's case it is not accepted that the right to family/private life outweighs the public interest in seeing him deported and therefore your client's deportation would not breach Article 8 of the ECHR.

81. As such it is considered by the Secretary of State that, for your client's family/private life human rights, any interference is proportionate in law and in line with the tests in Razgar."

87. The SSHD then referred to Article 8(2) and considered the question of proportionality, and at paragraph 84 concluded,

"It is considered proportionate to interfere with your client's family/private life due to his conviction for 3 counts of forging a document."

At paragraph 86 she stated,

"Your client's case has also been considered on an exceptional basis outside of the Immigration Rules, but in view of the fact that no evidence of any exceptional compelling or compassionate grounds has been submitted, the Secretary of State is not prepared to exercise discretion in your client's favour".

At paragraph 87 she expressed her conclusion that the Claimant's deportation would not breach Article 8 or any other human right established by the ECHR or Human Rights Act 1998.

88. The SSHD then turned to certification at paragraphs 93-9, and concluded,

"After consideration of all the evidence available, it has been decided that your client's claim is clearly unfounded as his deportation to Cameroon would not lead to a breach of the United Kingdom's obligations under Article 8 of the ECHR",

and the SSHD certified the decision to refuse to revoke the Claimant's deportation order under section 94(2) of the 2002 Act (so that the Claimant could only exercise his right of appeal outside the UK).

The Fresh Claim and Certification Decision of 3 June 2014

89. On 17 February 2014 the Claimant's solicitors wrote with further submissions and attachments and asked that they be treated as a fresh claim. These included:-

i) A letter from Dr M S Ayub (Restituta's GP) which identified that she was suffering from stress and low mood since November 2013 following her mother falling ill in Tanzania compounded by her husband's detention, that she had two children aged 5 and 16, and that

"as a consequence of her stress she has found it difficult to deal with social matters."

ii) A letter from Mr D. Hennessey, the Headmaster of J's school, dated 22 January 2014, in which he stated:

"Mr Onykwere is very involved in [J's] schooling, attend parent/teacher meetings and brings [J] to school on a regular basis. It has been noted by his teacher that if [J] does not have regular contact with his father, this affects him and it is more difficult to manage his behaviour".

90. On 10 April 2014 the Claimant's solicitors wrote further to the SSHD maintaining that removing the Claimant from the United Kingdom would cause a disproportionate breach of the Claimant's right to private and family life and would be a breach of Article 8 ECHR. The letter enclosed a number of additional items of documentation for consideration (and re-submitted the above letters from Dr Ayub and Mr Hennessey), and made detailed submissions in relation to that additional evidence. It was submitted that the evidence showed that the childrens' best interests had not been considered (either at all or not correctly), and the SSHD was invited to reconsider her position.
91. That evidence, which I have reviewed in its entirety, included:

i) A letter from J's GP. Dr S.F.Ahmad dated 12 March 2014, in relation to J which states:

"He is suffering from behavioural problems such as being hyperactive at school and fighting with other children. His father (Jude Onykwere) has been detained at a detention centre for the past 3 months although a request for judicial review has been filed but in the meantime the child's behaviour has worsened. Additionally, [J] has been referred by myself to CAMHS for help with his problems.

It would be beneficial for the child to have regular contact with his father and I would strongly recommend that his father's case is looked at again."

ii) A witness statement from Restituta, which provided, amongst other matters:

"8. My youngest daughter has become very emotional since Jude has been detained. She has been crying, she is more emotional for me. I have had to go to school on two separate occasions to collect her as she has been too emotional to carry on at school. I have been clashing with her as we are both upset about what has happened.

9. Our son [J] behaviour has changed considerably since Jude has been detained. He has been fighting with other children and he has asked to leave lessons. He has been referred by our family doctor for further mental health treatment. [J] believes Jude is at a workshop. He is too young to understand. He does believe Jude will come back to us. I do not want to think how [J's] mental health would be effected.

10. My daughters have a really close relationship with Jude…

…

15. My biggest fear is for [J]. I fear for the problems that I would have raising my boy alone. He has so much potential to be like his sisters and go on to do great things in the United Kingdom. I worry without Jude here to help me the future that I want for my son will be a pipe dream. It is [J's] life that is at risk."

iii) A detailed Medico-Legal Report from Dr Iona Steen in respect of the Claimant dated 19 March 2014. The report largely concerns the mental health of the Claimant but includes some evidence of the relationship between the Claimant and J. For example:

"47. [The Claimant] expressed frequent thoughts and considerable anxiety about his separation from his wife and children. He spoke about being his son's primary care giver (as his wife works). He spoke at length about the distress he feels when his son leaves him after coming to visit him in Brook House. He described great fear about being permanently separated from them.

...

176. From interviewing Mr Onykwere it is clear that the prospect of separation from his son is a particular stressor to his mental state. From the way Mr Onykwere spoke about his son, it appeared they have a strong emotional bond."

iv) A letter dated 7 April 2014 from Kate Fulton of the Sutton & Merton IAPT (Improving Access to Psychological Therapies), part of South West London and St.George's Mental Health NHS Trust, in relation to Restituta, who had self-referred to them having reported (amongst other matters),

"feeling very low, tearful and struggling to cope with day to day things since the detention of your husband and your mother passing away last November".

v) A letter of support from a Mrs Sylvia Platt dated 2 April 2014, who states that she has known the Claimant since 2005, and which refers, amongst other matters, to the fact that the Claimant,

"has been unusually closely involved with the upbringing of his son [J]. He has been his main carer, looking after him when his wife was at work and taking him to school and football academy."

Further letters of support were also enclosed from other people who had known the Claimant, his wife and/or family, which expressed supportive sentiments about the Claimant, his wife and/or the children, specifically from Fran and Ian Tulett dated 28 November 2013, a Maureen Uzouchukwu dated 5 April 2014, Joanne Walfall dated 6 April 2014, Mr and Mrs Gaspary dated 24 March 2014, Pastor Durosinmi-Etti (undated) and Victoria Malinzi (undated).

92. In a letter dated 3 June 2014 (the Fresh Claim and Certification Decision), the SSHD rejected the submissions made on 17 February 2014 and 10 April 2014. The SSHD first identified the relevance of Paragraph 353 of the Immigration Rules (which were set out). Reference was then made to WM, supra, and YH, supra, and at paragraph 7 it was stated, "It is also clear from the authorities on paragraph 353 that the test to surpass is a modest one. On occasion it has been described as a case where there is more than a fanciful prospect of success - see (AK (Sri Lanka) (R on the application of) v SSHD [2009] EWCA Civ 447)." It was then stated at paragraph 8,

"Having made a careful and detailed consideration of your client's claims, it is found that his submissions do not amount to a fresh claim, nor do they create a realistic prospect of success at an appeal."

93. Having set out the Claimant's immigration history again at paragraphs 10-33, the SSHD at paragraph 34 referred to the letters of 17 February 2014 and 10 April 2014 and identified the reasons the Claimant asked for reconsideration in the following terms:

i) Your client's daughter, Chichi, is no longer residing in Cameroon as she has fled to Belgium as she was going to be subject to female genital mutilation;

ii) Your client's step-daughters cannot relocate to Cameroon due to the risk of female genital mutilation.

iii) Your client's wife's mental health has deteriorated since her mother passed away;

iv) Your client's son's mental health has suffered since your client was detained;

v) Your client faces the risk of being tortured or killed upon his return to Cameroon.

94. This identification of the asserted basis of the fresh claim broadly followed the list on page 2 of the letter of 17 February 2014, save that it omits the words

"and detention of her husband" in the third bullet point, omits "Applicant's son, [J], performance in school has been affected due to the detention of the applicant. See letter from SS Peter & Paul Catholic School dated 22 January 2014"

and adds in the second last bullet point about J's mental health having deteriorated. At paragraph 35 the SSHD then accurately identified the documents submitted under cover of the letters of 17 February 2014 and 10 April 2014.

95. The next section of the letter (paragraphs 40 to 55) is identical to the corresponding paragraphs of the Certification Decision letter of 29 November 2013 (paragraphs 34 to 49). Accordingly at paragraph 40, the SSHD again stated,

"Whilst it is considered that the decision to remove your client to Cameroon will give rise to interference with his rights under Article 8 (and may not be in the best interest of his child), we are satisfied that the interference is in accordance with the permissible aim of the prevention of crime and disorder",

whilst at paragraph 47 the SSHD again accepted that the Claimant was in "a genuine and subsisting relationship with [J]", and that it "would be unreasonable to expect [J] to leave the UK as he is British and he has lived here all his life". However, applying the last criterion in paragraph 399(a) of the Immigration Rules, the SSHD again concluded that there was another family member who was able to care for J namely his mother (paragraph 47(d) which is identical to paragraph 41(d) of the letter of 10 November 2013). The SSHD again also accepted that the Claimant was in a "genuine and subsisting relationship with Jessica", but concluded that "there is another family member who is able to care for Jessica... as she lives with her mother" and Jessica was also "in contact with her biological father who lives in the UK" (paragraph 49 identical to paragraph 43 of the 10 November letter), leading to the same conclusion at paragraph 52, namely

"Having considered the factors in your client's case, it is not accepted that his right to family life outweighs the public interest in seeing him deported and therefore your client's deportation would not be in breach of Article 8 of the ECHR."

Once again there was no reference to the OCC advice of 10 October 2013.

96. The SSHD again then considered paragraphs 399(b), in broadly similar terms although it was noted that

"Your client has provided evidence to show that he lives with Ms Kalemera as his wife and she has provided further information to show that [the Claimant] has helped to raise their family",

and an additional sub-paragraph was added to sub-paragraph (e), addressing the possibility of the Claimant's wife and step-daughters visiting the Claimant outside the UK, and adding,

"Once they are both adults Ms Kalemera could leave her daughters in the UK if she wished and then relocate to Cameroon with her son J to be with [the Claimant]" (paragraph 54(e)).

97. After considering Paragraph 399A (in broadly similar terms as in the letter of 10 November 2013, though taking account of his daughter fleeing to Belgium, at paragraphs 56 to 58), the SSHD then considered at considerable length the Claimant's personal circumstances in relation to torture and his mental health, under the heading "Exceptional circumstances" (at paragraphs 59-88). The SSHD considered, but rejected the Claimant's claim that he feared torture upon his return to Cameroon as amounting to an exceptional circumstance (paragraph 63). The SSHD then took account of the evidence in relation to the Claimant's depression and medication, but the SSHD concluded that he could seek treatment for depression in Cameroon, and receive his medication there, that his removal to Cameroon would not breach his Article 8 rights in relation to his mental health problems, and that the claim that he would commit suicide if he was deported to Cameroon was not an exceptional circumstance that would prevent his deportation (paragraph 88).
98. After devoting some 29 paragraphs to the above matters concerning the Claimant's fear of torture and his mental health, the SSHD then addressed the question of exceptional circumstances outside the Rules in relation his wife and son J in two paragraphs in these terms (at paragraphs 89 and 90):

"89. It is also noted that your client's wife Restituta Kalemera, and son [J] were referred to their GPs whilst your client was in detention. It is noted that your client's son was suffering from behavioural problems and your client's wife was showing signs of depression. You state that your client's separation from the family has brought this about and as such his deportation ought to be reconsidered.

90. It is considered that Ms Kalemera can decide what is best for the sake of her mental health, whether that be to relocate with [J] to Cameroon in order to keep the family unite together or stay in the United Kingdom and seek further help and support from friends, family members and the NHS. As noted above, medication for depression is available in Cameroon should Ms Kalemera choose to accompany your client there and require further treatment. If she decides to remain in the UK then she already has links to the provisions available to her from her local NHS trust, such as the Mood Management Courses at The Wilson Hospital, Mitcham and she has been provided with the telephone numbers for the Samaritans and Crisisline should she need them. It is also considered that if [J] remains in the UK with his mother then he too will be able to access further support from the NHS and his educational provider for any future behavioural problems. He will be able to retain contact with your client via modern means of communication and will be able to visit him in Cameroon with his mother, subject to financial constraints."

99. It is to be noted, at this point, that neither in these paragraphs, nor elsewhere in the context of exceptional circumstances and Article 8, is there any express consideration of J's welfare and best interests whether as a primary, albeit not paramount, consideration or otherwise, nor is the evidence from his headmaster addressed (in terms of what it tells one about the ties between father and son, as opposed to behavioural problems), nor that from his GP (in terms of the impact on the child of the detention of his father and benefit of regular contact, as opposed to treatment of the consequences of the same in terms of any deterioration in mental health). It will also be noted that Jessica, the Claimant's step-daughter, is not mentioned at all in this section of the letter.
100. The SSHD then stated at paragraphs 91:

"91. The Secretary of State has taken into consideration all the known facts surrounding your client's case and it is concluded that there is no evidence of any exceptional, compelling or compassionate grounds by which your client's claims may be considered to outweigh the public interest whether that be in line with the Immigration Rules or when considered exceptionally outside the Rules. Therefore the Secretary of State is not prepared to exercise discretion in your client's favour."

101. At paragraphs 92-94, the SSHD then concluded that the Claimant's further submissions did not constitute a fresh claim and that her previous decision to certify the Claimant's human rights claim should be maintained, stating:

"Conclusion

92. In conclusion, the Secretary of State is satisfied that all relevant factors have been taken into account in considering your client's further representations and that maintaining the previously certified decision is justified as your client has failed to demonstrate that his rights under Article 8 of the ECHR would be breached or that the decision to deport him is no longer proportionate.

93. Further, the Secretary of State has considered your client's claims and determined that your client's submissions do not amount to a fresh claim nor do they create a realistic prospect of success at appeal in accordance with the test laid out under paragraph 353 of the Immigration Rules.

94. Having given careful consideration to your client's representations the Secretary of State is satisfied that no further immigration decision is required. Hence your client has no right of appeal until he is removed from the UK."

The Claimant's Submissions

102. The Claimant submits that the SSHD's approach to the best interests of the two children affected by the Certification Decision and the Fresh Claim and Certification Decision was irrational. It is submitted that so far as the certification decisions are concerned, when the court applies the objective test to the materials before the SSHD to the Claimant's claim (as it is required to do - see ZL, supra, at paragraph 56) the court should conclude that on at least one legitimate view of the facts or the law the claim may succeed on an appeal, and as such the claim is not clearly unfounded (ZL at para 58). Equally, the claim does have a realistic prospect of success, and in circumstances where the SSHD has reached a contrary view, it necessarily follows that the SSHD's view was irrational. In the context of the material concerning the best interests of J and Jessica supplied in advance of the Fresh Claim and Certification Decision the Claimant submits that they are significantly different from the material previously considered, as that content had not already been considered and taken together with the previously considered material created a realistic prospect of success notwithstanding its rejection, so the SSHD's decision in relation to such fresh claim was irrational.
103. Mr Gwion Lewis, on behalf of the SSHD, denies that there was any irrationality in the SSHD's decisions, and he launches a root and branch attack on the Claimant's Skeleton Argument asserting that it is "no more than an extensive statement of disagreement with the decision challenged and does not come close to make good the allegation of irrationality" (SSHD Skeleton Argument para 5). He goes on to submit at paragraphs 6 and 7 as follows:

"6. Still less does the Claimant's skeleton argument show that there is a real prospect that the Secretary of State might have come to a materially different decision if the Claimant is correct (and he is not) that certain aspects of the Article 8 ECHR analysis relating to his son and step-daughter should have been reasoned more fully in the decisions. The Secretary of State maintains that it is inconceivable that the Claimant could, on appeal to the First-tier tribunal, succeed in obtaining leave to remain in the United Kingdom on Article 8 grounds by virtue of his relationship with his son and step-daughter when the evidence shows that it is only after the Secretary of State decided to deport him that he showed any appreciable interest in his paternal duties to either of them.

7. The evidence that the Secretary of State considered about the Claimant's involvement with his son and step-daughter was superficial and did not show that either of the children had come to depend on him in such a way that his deportation would be a disproportionate interference with his and/or the children's Article 8 rights. There was no prospect of a Tribunal judge concluding that any interference would be disproportionate given the evidence of the lack of care and devotion that the Claimant had shown towards the children historically."

104. Mr Lewis invited the court to stand back and look at the decisions as a whole. He submitted that they were not difficult to understand (a point made at para 44 of the SSHD's Skeleton Argument, and repeated by him at the start of his oral submissions):

"The Secretary of State's decisions on this issue are not difficult to understand: she was satisfied that the Claimant had a parental relationship with the two children; she was simply not satisfied that the evidence showed a degree of connection and inter-dependence between them that would render the Claimant's deportation disproportionate. Taking the evidence as its highest, it showed a father who had not shown significant interest in either of the children historically, and who had only started to carry out some child-minding responsibilities once a DO had been made against him. In these circumstances, it was rational to conclude that the evidence relied upon was not of such quality as to give the Claimant a prospect of succeeding in any Article 8 claim on appeal, let alone a realistic prospect."

105. The Claimants' Skeleton Argument is, on any view lengthy, running to some 34 pages, with four heads of complaint expanded into eight headings. The four heads of complaint are set out at paragraph 71 of the Claimant's Skeleton Argument:-

"71. On the Claimant's account the Defendant's finding with regard to the operation of paragraph 399(a(i)m were irrational and unlawful being fixed in reliance upon a series of errors of law and fact which saw her:

(a) record findings which were internally incompatible and which informed consequently the continued unreasonable reliance upon the earlier decision of the FTT;

(b) fail to properly appraise the evidence adduced by the Claimant adequately or at all, and/or in a manner compatible with authority applicable to certification and fresh claim disposals;

(c) fail to consider, or disclose, material facts and guidance material to a proper assessment of both the best interests of the children effected by her decision making;

(d) adhere to a flawed legal approach when determining to exclude the Claimant from the exceptions to deportation contained within her immigration rules."

106. When these were then addressed by the Claimant in the Skeleton Argument, these were then broken down under eight headings:

i) "Acceptance of a Genuine Subsisting relationship" - essentially that having accepted that there was a genuine and subsisting relationship with J and Jessica in the context of the Rules based assessment (for the purpose of para 399(a)(i)(a)) it was not identified by the SSHD why this same evidence was not capable of impacting upon, and arguably being probative of, the Claimant's case that his separation from his children was by 2014 contrary to their best interests and would be disproportionate in the context of the conclusions reached on Article 8 and proportionality outside the Rules.

ii) "Treatment of the evidence going to the strength and nature of the ties" - that the SSHD failed to address or give any adequate reasons in relation to the evidence that the Claimant and Restituta had been co-habiting for 18 months, there was evidence of a real emotional bond with J, that the headmaster's letter of 22 January 2014 showed both a real involvement in J's schooling on the part of the Claimant and the impact on J of the Claimant's detention, coupled with the GP letter from Dr Ahamad as to J's behavioural problems and referral to CAMHS - which on one proper view of the uncontroverted facts disclosed by that evidence sufficed to confound the Defendant's contentions that the findings of the immigration judge recorded as far back as 2012 retained any currency, that the Claimant was characteriseable as no more than a "child minder", and that it could be excluded as unarguable that the effect on severance of the Claimant's family life with his children could not on any legitimate view of the law and facts be characterised as unreasonable.

iii) "Contested evidence" - an attack on the expressed views of the SSHD as to the evidence of Jessica and Margaret in the letter of 1 July 2013, leading to the submission that,

"Given the absence of a sustainable basis for excepting admission of the Claimant's step-daughters evidence then the decision of the Defendant to exclude the same when assessing eligibility, both within and out with the rules obviously operated so as to flaw the decision to certify further, that evidence having corroborative value, emanating from third parties whose testimony had not previously been heard and whose credibility had no where been impugned."

iv) "A generally flawed approach to evidential assessment" - revealing a lack of "anxious scrutiny" - which focussed on the treatment of the evidence concerning Restituta, the Claimant's wife - which was not addressed in the Rules based assessment but only in the context of the SHD's "exceptional circumstance" review.

v) "The exceptional circumstances review" - the evidence relating to Restituta and J's mental and emotional issues was only considered in the context of the exceptional circumstance review where it was appraised imperfectly, superficially and irrationally - leading on to criticism of the matters set out in paragraph 90 of the Fresh Claim and Decision Letter (based on the Claimant's characterisation of what the SSHD was there saying).

vi) "The duty to investigate and undertake considered appraisal" - the margin between the approach adopted to the evidence by the SSHD to the determination of the best interests of a child(ren), and that required by authority - specifically the approach of the Upper Tribunal in JO, supra.

vii) "Non-disclosure by the Defendant" - this related to the failure to disclose or refer to the advice of 10 October 2013 from the Office of the Children's Champion, or the SSHD's GCID records for 2-3 October which revealed the fact of her engagement with Merton Social Services (Mr Jones indicated orally that this latter point was not pursued).

viii) "Ogundimu and the alternative carer test" - that the whole assessment of the best interests, and appraisal of impact on J and Jessica was profoundly compromised by the Defendant's determined adherence to an immigration rule which fails on authority to deliver proper recognition of the best interests of a child in all events" it being alleged that the SSHD did not undertake a best interests assessment which properly accorded the rights of children with the status of a primary consideration, the separate consideration under Article 8 being substantially flawed. Thus it was submitted at paragraph 137 of the Claimant's Skeleton Argument,

"...the Defendant nowhere reappraised the public interest in deportation in the course of her 2013 and 2014 decision as against the new evidence establishing genuine and subsisting relationships with his children and lack of re-offending."

107. In his oral submissions, which I have given careful consideration to, Mr Jones reiterated the points made in his Skeleton Argument albeit not by reference to his Skeleton Argument, and without putting into sharp focus the precise error(s) of law that were alleged.
108. In his oral response Mr Lewis, on behalf of the SSHD, assimilated Mr Jones' submissions into eight alleged errors of law on the part of the SSHD. In his oral reply Mr Jones stated that he, "agreed that those eight grounds are essentially the critical grounds of assault to the decisions", but that it was necessary to re-emphasise the overarching issues, namely a review by the court of the evidence and whether the claim was clearly unfounded, and also whether the decisions were rational.
109. The eight alleged errors of law were as follows:-

i) The best interests of the children were assessed by reference to paragraphs 398 and 399 of the Immigration Rules, and in doing an exceptional circumstances review outside of the Rules the SSHD did not identify, or have regard to the fact, that the children's interest were primary, nor did she evaluate the public interest against the changed circumstances concerning the children.

ii) That it was illogical for the SSHD to find that the Claimant had a genuine and subsisting relationship with both the children but then conclude that the Claimant lacked sufficient emotional ties so as to lead to a potentially good Article 8 claim, or at least that on one reasonable and legitimate view of the evidence, another decision maker could conclude that there was a significant relationship with the children, and reach a different outcome in the light of such conclusion.

iii) That the SSHD adopted an unfair or cursory approach to the step-daughters' letter of 1 July 2013.

iv) That the SSHD had not considered the wife's latest statement dated 8 April 2014.

v) That the SSHD failed to contemplate the anticipated deterioration in the wife's mental health or behaviour of J.

vi) That the SSHD should have engaged with the views expressed by the Office of Children's Champion.

vii) That in the context of the new evidence and the best interests of the children (Jessica as well as J) the SSHD should have reappraised the public interest in deportation against the best interests of the children.

viii) That there was an inconsistency in para 90 of the Fresh Claim and Decision Letter in the SSHD advocating that the wife, son and step-daughters relocate to Cameroon given that the SSHD had accepted that it was not reasonable for the son J to do that.

Discussion

110. In relation to the certification decisions I have, as I am required to do, considered whether the claim was in fact clearly unfounded in accordance with the guidance provided in the decision of ZL. In that regard I remind myself of what was said by Lord Phillips MR in ZL (when giving the judgment of the court), namely (at [58]):

"58. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded."

111. I will first consider the position in relation to the Certification Decision, and the factual position before the SSHD on 29 November 2013. The SSHD first considered the matters under paragraphs 398 and 399 of the Rules. It will be recalled that at that time these provided, in relevant respects as follows:-

"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

[…]

(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; […]

[…]

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors."

"399. This paragraph applies where paragraph 398(b) or (c) applies if

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British citizen; […]

and […]

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK."

112. Paragraph 398(b) clearly applied. The requirements of paragraph 399 are cumulative. The SSHD considered each of these. She found that the Claimant had a genuine and subsisting parental relationship with both J and Jessica who were each British citizens (para 399(a)(i)). She found that it would not be reasonable to expect either of them to leave the UK (para 399(a)(i)(a)) but concluded that there was another family member who was able to care for the children in the UK, namely Restituta (para 399(a)(i)(b)). There can be no complaint as a matter of law about the SSHD's application of paragraphs 398 and 399 as they then provided in relation to her Rules based assessment. At the stage of applying the provisions of paragraphs 398 and 399 they are to be applied as they were at the time. It is not relevant to the application of paragraphs 398 and 399 that the criteria under paragraph 399(a) were changed and it was subsequently relevant to consider whether,

"It would be unduly harsh for a child to remain in the United Kingdom without the person who is being deported".

Given that paragraph 399 did not apply, under paragraph 398 it would only be in exceptional circumstances that the public interest in deportation would be outweighed by other factors.

113. However, as has already been identified, in Ogundimu (Article 8: New Rules: Nigeria), supra, the Upper Tribunal concluded that paragraph 399(a) of the Immigration Rules (as quoted above), did not allow for consideration of where the best interests of the child lay, as was required of the SSHD pursuant to her duty under Article 3 of the UN Convention on the Rights of the Child 1989. However the duty to make the child's welfare and best interest a primary, albeit not paramount, consideration, has been imported into Article 8 considerations by case law, notably ZH (Tanzania), supra.
114. The SSHD then needed to consider whether there were exceptional circumstances, and to undertake an Article 8 review in the course of which it was necessary to consider the best interest of the children as a primary consideration, albeit not paramount consideration, when assessing whether it was proportionate to deport the Claimant due to his conviction for 3 counts of forging a document. I reject the suggestion that in every case, or in the context of this particular letter (the Certification Decision), it was necessary to spell this out by express reference, or to repeat what had already been said in relation to the Rules based assessment. There will, however, be cases where this is necessary in order to demonstrate that such interests have been considered and given proper weight, having regard to the factual material before the SSHD. Whether the SSHD will need to do so will depend on the factual material before the SSHD and whether that material is such that it needs to be addressed head-on in considering the best interests of the children as a primary consideration. To that extent, every case will turn on its own facts, and a consideration of Article 8 and the question of proportionality when applied to those facts. Thus it is necessary in each case to look at what was said in the letter as a whole, when set against the factual material that was before the SSHD, to see whether the decision to certify was rational.
115. I agree with the submission of Mr Lewis on behalf of the SSHD that in relation to the Certification Decision the complaint of the Claimant is one of form rather than substance. If one looks at the facts as they then existed these were addressed, with the SSHD recognising that the Claimant had a son and two step daughters and had a family life with them in the UK (paras 62 and 63), and the SSHD no doubt had in mind that which had only recently been stated in the letter, namely that deportation may not be in the best interest of J (para 34) and that the Claimant had a genuine and subsisting relationship with both J and Jessica (paras 41 and 43). I can see no inconsistency in those findings, and the conclusion that could be reached on the facts (and was reached on the facts).
116. Part of the facts were those found by the immigration judge (Mr Jones accepted that the immigration judge's determination was a "starting point" for the review of any subsequent further submissions and evidence - Claimant's Skeleton Argument paragraph 78). In fact very little had changed since the determination by the immigration judge. There was nothing to suggest real ties between the Claimant and J or Jessica, and the relationship was both recent and limited. The information given by the Claimant regarding his family life was minimal (para 71). There was also a lack of corroboration for what was asserted (most notably from any independent third party source). Viewing the evidence as a whole at that time there was indeed,

"no further evidence to show that [the Claimant's] bond with Restituta and J goes further than him living with the family and undertaking the day to day tasks around the home"

although it was noted (consistent with the evidence) that

"they do have a relationship on some level and [the Claimant's] deportation will interfere with this." (paragraph 75).

117. The only substantial new piece of evidence was the letter of 1 July 2013 stated to be written by Margaret and Jessica. I do not agree that the SSHD "rejected" this evidence (she simply gave it little weight) in circumstances where she raised the possibility that the letter might have been written not by Margaret and Jessica but by the Claimant (paragraph 72). Given the lack of corroboration of what was said, and the Claimant's history of forging documents, the observation is understandable, albeit I note the points made on behalf of the Claimant specifically that Margaret was a university student at the time, and Jessica was herself 16.
118. In any event I have myself viewed that letter afresh as part of the facts that were before the SSHD. When one looks at its contents, I do not consider it takes matters any further as at the time it was written. The assertions contained therein (as already quoted above) were very general and could potentially be asserted in almost any case. It does not begin to address the immigration judge's findings, and evidential gaps, that were relied upon by the SSHD. It is also clear that the letter cannot be construed as being from J, and I see no valid criticism of the observation of the SSHD (paragraph 72) relating to the lack of any letter or drawing from J. I regard this as a minor point, but young children do often make drawings depicting their family unit. It was a possible item of evidence in relation to family ties that was not present.
119. I do not consider that there is anything in the failure of the SSHD to refer to the views expressed by the Office of the Children's Champion on 10 October 2013. It will be recalled that this provided,

"Mr Onykwere has lived with his son nearly 5 year old, [J] all his life. I do think there will be an impact on [J's] welfare if he is separated from his father by his removal from the UK. He is part of [J's] day to day life."

The SSHD did not disagree with that, and in such circumstances there was no reason or need to refer to it. She recognised that the Claimant had a genuine and subsisting relationship with J (para 41) and had noted that deportation may not be in the best interest of J (para 34). However the role of the SSHD (unlike the OCC), was to undertake a consideration of Article 8 and address the question of proportionality. This was something she did.

120. Ultimately, and having had regard to all the facts that were before the SSHD at the time of the Certification Decision (and having carefully considered all the points advanced on the Claimant's behalf before me) I do not consider that on any legitimate view of the facts or the law the Claimant's claim was one that might succeed. I consider that there was no reasonable doubt as to whether the Claimant's claim might succeed on appeal. The claim, on the basis of the facts then before the SSHD, was clearly unfounded. In such circumstances there is no valid ground of challenge to the SSHD's Certification Decision.
121. I turn now to the Fresh Claim and Certification Decision. The factual position was different (arguably very different) by 3 June 2014, both from the factual position at the time of the immigration decision (and the SSHD's reliance on it in her Certification Decision) and at the time of the Certification Decision itself. There was now evidence from third party sources that could (on one view of the facts if not on any view of the facts) be regarded as independent and reliable, which not only went to corroborate the assertions previously made (including the assertions concerning family life, the Claimant's role in the upbringing of J and the assertions in the letter bearing the step-daughters' signatures of 1 July 2013) but more importantly, if accepted (and I see no reason why a tribunal would not potentially accept it), showed that the Claimant was talking an active part in J's life, that there were strong ties between the father and his young British son J, and that the effect of the Claimant's detention had already had a detrimental effect not only on J's behaviour but his actual mental health, in circumstances where the mental health of J's mother, and her ability to care for J and her daughters, had also declined. These are all potentially very important factors when considering the best interests of the British children J and his step-sister Jessica as a primary consideration when set against the public interest in deporting the Claimant.
122. As already noted, it is striking that neither in paragraphs 89 or 90 of the letter, nor elsewhere in the context of exceptional circumstances, is there any express consideration by the SSHD of J's welfare and best interests whether as a primary, albeit not paramount, consideration or otherwise, nor is the evidence from his headmaster addressed (in terms of what it tells one about real ties between father and son, as opposed to behavioural problems), nor that from his GP (in terms of the impact on the child of the detention of his father and benefit of regular contact, as opposed to treatment of the consequences of the same in terms of any deterioration in mental health). It is also notable that Jessica, the Claimant's step-daughter, is not mentioned at all in this section of the letter.
123. Whilst it is well established that the SSHD does not have to record and deal with every piece of evidence in a decision letter (see paragraph 22 of the judgment of Lord Hodge JSC in Zoumbas, supra), it is important, as Lord Mance JSC said in H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor Intervening) [2013] 1 AC 338, at [98], that the interests of the children must be at the forefront of the decision-maker's mind. The letters from the headmaster and the GP related directly to the real ties between the Claimant and J, and the best interests of J, and yet they are not addressed (in a ties/best interest context), as one would expect them to be if the interests of J were at the forefront of the SSHD's mind given the contrast with the previous lack of evidence. They are pieces of evidence that one would expect the SSHD to deal with expressly, and head-on, given their potential importance, and the completely different picture that this independent third party evidence painted to that previously available, and which was directly relevant to the best interests of J considered as part of any exceptional circumstances, and as a potential counter balance to the public interest in deportation.
124. After acknowledging the factual points made at paragraph 89 (referral of Restituta and J to their GP, and that J was suffering from behavioural problems and Restituta was showing signs of depression), and the Claimant's assertion that the Claimant's detention has brought about these matters, what is then said at paragraph 90 relates to how there can be treatment of the symptoms that have manifested themselves (both in relation to J and his mother), rather than considering what the evidence may be considered as revealing about the strength of the ties between father and son, and the impact upon the son, and his best interests as a primary, albeit not paramount, consideration.
125. I do not consider that it can be said that such matters were considered implicitly, or given any sufficient consideration when reading the letter as a whole. The evidence (in particular from the headmaster and J's GP) was arguably important new evidence from independent third parties that went directly to actual ties between the Claimant and his son, and the son's best interests having regard to his relationship with his father, and care by his mother, in the context of exceptional circumstances and the proportionality of the deportation of his father as an offender. It needed to be addressed head on in the context of considering the maintenance of the certification decision and whether the Claimant's submissions amounted to a fresh claim.
126. The references to the reasons why reconsideration was sought (paragraph 34), the documents themselves (paragraph 35) and general statements that removal of the Claimant to Cameroon may not be in the best interest of J (paragraph 40), together with the matters identified at paragraph 47 (J) and paragraph 51 (Jessica) do not involve any engagement with the additional evidence that was before the SSHD either at this part of her letter, or when considering exceptional circumstances, and in my view it was evidence that needed to be addressed expressly on a careful consideration of the evidence in the context of any certification, and as to whether or not the new evidence amounted to a fresh claim.
127. Standing back for a moment, and if one revisits the determination of the immigration judge (and in particular paragraphs 77 to 79 thereof) on which so much reliance was placed by the SSHD in the earlier Certification Decision, I consider it to be readily apparent that he might well have had different views, and would not have been in a position to express many of the views he expressed, about the lack of substantial emotional ties between father and son, the lack of evidence of the Claimant playing any key emotional role in the family group, and the lack of evidence suggesting that the absence of the Claimant would have a significant emotional effect on J, had he had before him the material that the SSHD had before her on 3 June 2014. Equally the SSHD relied at length on many of the findings of the immigration judge in this context in reaching her own decision in relation to Article 8 in her previous Certification Decision (see paragraphs 74, 76 and 77). The evidence had moved on as at 3 June 2014, and it is in the context of the evidence then available that it is necessary to consider the decision to maintain the certification of the Claimant's claim and decision that the further submissions did not amount to a fresh claim.
128. On one legitimate view of the facts a strong bond had formed between the Claimant and his young British son J resulting in substantial emotional ties – the Claimant was very involved in his schooling, he attended parent teacher meetings, he took J to school on a regular basis, and to football academy – he was his main carer. When J was separated from his father, it was more difficult to manage J's behaviour at school, and the effect of their separation was such that this had not only led to J suffering behavioural problems at school, but it had affected J's mental health with referral by his GP to CAMH for help with his problems – these are all matters that impact on the best interest of J. This is all new evidence which comes from independent third parties, which also went to corroborate what was being said by the Claimant's wife in her statement (post-dating the Decision Letter) in relation to J and Jessica, as well as what had previously only been asserted in the step-daughters' letter of 1 July 2013. There is also the independent evidence of Restituta's GP which evidences that she was having difficulty coping – which again impacted upon the best interests of both J and Jessica. Of course against all of this was the fact that the evidence of the father's engagement in paternal duties post-dates the SSHD's decision to deport him, and he had been found guilty of a number of offences.
129. Whilst it is perfectly possible that ultimately it might be concluded that the best interests of J and Jessica might be out-weighed by the public interest in deporting the Claimant who had been convicted of offences that led to a seventeen month custodial sentence (albeit some considerable time ago), when it comes to a consideration of all the facts that were before the SSHD at the time of the Fresh Claim and Certification Decision on 3 June 2014 on at least one legitimate view of the facts and the law a Tribunal judge might well conclude that any interference would be disproportionate to the children's Article 8 rights, and the Claimant's claim might succeed. As such the claim was not clearly unfounded (ZL, supra at [58]), and I so find. There was, I consider, (at least) a reasonable doubt as to whether the claim may succeed. Looking at the certification decision from a rationality perspective I conclude that the Claimant's claim has a realistic prospect of success, and in circumstances where the SSHD reached a contrary view, it necessarily follows that the SSHD's view was not rational (see ZT, supra, at [23]), and I so find.
130. Turning to the fresh claim aspect of the decision and paragraph 353 of the Immigration Rules, the submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content has not already been considered and taken together with the previously considered material created a realistic prospect of success and notwithstanding its rejection. Applying the approach in WM, supra, at [6], the first question for the SSHD was whether the new material is "significantly different" to that previously before the SSHD. It clearly was. Previously there had been little or no hard evidence of the strength of the ties between J and his son, nor as to any impact upon the son of any deportation, still less corroboration from independent third parties (there being no such evidence from third parties previously). The material being significantly different, the SSHD then had to consider whether it, taken together with the material previously considered, creates a realistic prospect of success before a tribunal.
131. I bear in mind that in reviewing the SSHD's decision in relation to the allegedly fresh claim I am assessing it on a Wednesbury basis (as opposed to coming to my own view on the strength of the claim). In this regard I bear in mind what was said in WM at paragraph 11:

"11. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision."

132. The SSHD did consider whether the Claimant's claims created a realistic prospect of success at appeal (at least in terms of identifying the test - see paragraph 93). However I cannot be satisfied that in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from the facts, the SSHD satisfied the requirement of anxious scrutiny given the facts that emerged from the new material before the SSHD as identified above. If the SSHD had asked herself whether an independent tribunal might realistically come down in favour of the Claimant's claim, on considering the new material together with the material previously considered, the only rational conclusion was that an independent tribunal might realistically come down in favour of the Claimant's claim (see AK (Afganistan), supra). Accordingly I conclude that in determining that the Claimant's further submissions did not amount to a fresh claim and create a realistic prospect of success at appeal, the SSHD acted irrationally.
133. This is not one of those borderline cases where the court considers that the claim is arguable but accepts that it was open to the SSHD, having asked herself the right question and applied anxious scrutiny, to think otherwise. There was here, a failure to apply anxious scrutiny to the new independent third party evidence in circumstances where, having regard to that evidence, the only rational conclusion was that an independent tribunal might realistically come down in favour of the Claimant's claim.
134. The same conclusion can be reached on wider public law grounds on the basis that the SSHD failed to consider, and/or to give any, or any adequate, weight to the new evidence, in particular that from J's headmaster and GP when considering the application of paragraph 353 of the Immigration Rules, and whether they amounted to a fresh claim. There was also a failure to have any adequate regard to the best interests of J and Jessica as a primary, albeit not paramount, consideration in the same context.
135. The Claimant's claim for judicial review accordingly succeeds in relation to the Fresh Claim and Certification Decision both in relation to the maintenance of the certification, and fresh claim, for the reasons given above. No doubt the parties can agree as to what orders are appropriate in the light of my judgment. However should the parties not be able to agree the same, then I will hear further from the parties.
136. In the above circumstances it is not necessary to lengthen, what is already a lengthy judgment, by addressing in detail each of the eight alleged errors of law that were extracted from the submissions made on behalf of the Claimant. The claim for judicial review succeeds, and for the reasons I have given. I will, however, address them briefly out of courtesy to the Claimant's counsel:-

i) I agree that in relation to the Fresh Claim and Certification Decision, and when doing an exceptional circumstance review outside the Rules the SSHD did not give any, or any proper, consideration to the new material and how it impacted upon the question of the primary interest of the children, when weighing those interests against the public interest when considering whether the claim was clearly unfounded. In the light of that material, as at 3 June 2014, on at least one legitimate view of the facts or the law, the claim might succeed and the claim was not clearly unfounded.

ii) I do not consider that there any illogicality, in the context of the Certification Decision, in the SSHD finding that the Claimant had a genuine and subsisting relationship with both the children but then concluding that the Claimant lacked sufficient emotional ties so as to lead to a potentially good Article 8 claim. However, on the facts of this particular case, as at the time of the Fresh Claim and Certification Decision, the SSHD failed to have any or any adequate regard to the new material and what it revealed as to the ties between the Claimant and his son and the impact on his son of deportation, such that as at 3 June 2014, on at least one legitimate view of the facts or the law, the claim might succeed and the claim was not clearly unfounded.

iii) I do not consider that the SSHD adopted an unfair or cursory approach to the step-daughters' letter of 1 July 2013 in the Certification Decision. However even if her approach to this letter could be criticised I do not consider that this letter makes any difference, as based on the evidence at the time of the Certification Decision, the claim was clearly unfounded.

iv) I consider that the SSHD did consider the wife's latest statement dated 8 April 2014, but did not follow through the implications of this in terms of the best interests of J and Jessica. This is, however, only one aspect of the new evidence. The more important aspect of the further material was the independent corroborative and substantive evidence of the headmaster and GP when considering the best interests of J.

v) I consider that the SSHD did contemplate the anticipated deterioration in the wife's mental health and behaviour of J (at least in terms of how those matters could be treated in the future), but did not fully address the implications of such matters in terms of the best interests of J and Jessica.

vi) I do not consider that the Claimant has any valid complaint in relation to the SSHD's treatment of the views expressed by the Office of Children's Champion, for the reasons I have given.

vii) I have addressed in my judgment above, the SSHD's failure to consider the impact of the new material on the best interests of the children (which would be weighed against the public interest in deportation).

viii) There was no inconsistency in paragraph 90 of the Fresh Claim and Decision Letter. The Claimant's submission misinterprets paragraph 90. The SSHD was not advocating that the wife, son and step-daughters relocate to Cameroon. She was simply noting that they might elect to do so.

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