Ahmed Fathe Ayache v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Coker |
| Judgment Date | 15 December 2016 |
| Neutral Citation | [2017] UKUT 122 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 15 December 2016 |
The Queen on the Application of
[2017] UKUT 122 (IAC)
Upper Tribunal Judge Coker
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
R (on the application of Ayache) v The Secretary of State for the Home Department (paragraph 353 and s94B relationship)
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1. Although paragraph 353 does not refer in terms to certification, a decision certified pursuant to s 94b is plainly a decision on a “human rights claim” albeit a claim regarding temporary removal as opposed to removal for a more lengthy period if a statutory appeal is unsuccessful. In deciding whether to certify under s94B the respondent, and the Tribunal, cannot act in a way which is incompatible with the applicant's Convention rights. It must follow that further submissions made and considered in accordance with paragraph 353 Immigration Rules would fall within their ambit, including the appropriateness of certification. Certification is a response to the human rights claim, albeit focused upon temporary removal rather than the main claim.
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2. Paragraph 353 Immigration Rules provides the appropriate remedy where further information and evidence is sought to be placed before the respondent, rather than such material being considered in judicial review proceedings
Mr M Henderson, Counsel, for the Applicant (instructed by Gulbenkian Andonian Solicitors)
Mr L Glenister, Counsel, for the Respondent (instructed by GLD)
The applicant, who is a citizen of Sierra Leone born on 7 July 1982, was issued with entry clearance on 11 August 1995 and entered the UK on 17 August 1995, aged 13. He then applied for and, on 24 July 1996 was granted, indefinite leave to remain.
On 5 December 2003, aged 21, the applicant was convicted of 2 counts of conspiracy to handle stolen goods, 2 counts of theft, robbery and having a firearm with intent to commit an indictable offence. He was sentenced to 5 years' imprisonment in total. On 11 May 2004, notice of intention to deport was served upon the applicant. Deportation was not pursued.
He was convicted of further offences:
| 12 October 2007 | using disorderly behaviour or threatening, abusive, insulting words likely to cause harassment, alarm or distress and travelling on a railway without paying a fare: fine of £150, costs of £250 and £3 compensation. |
| 8 April 2008 | using disorderly behaviour or threatening, abusive, insulting words likely to cause harassment, alarm or distress: 12 month conditional discharge, costs of £60 |
| 8 July 2008 | driving a motor vehicle with excess alcohol and failing to surrender to bail at appointed time: fine of £250, costs of £50, disqualified from driving for 12 months. |
| 4 September 2014 | possessing controlled Class A drug (cocaine) with intent to supply: 4 years' imprisonment and victim surcharge of £120. |
On 10 February 2015, the applicant was served with a decision to deport. His representations, on Article 8 and 3 grounds, on why he should not be deported were refused for reasons set out in a letter dated 11 September 2015. His Article 8 human rights claim was certified under s94B Nationality, Immigration and Asylum Act 20021 and his Article 3 claim was certified under s94 of the 2002 Act as clearly unfounded.
On 15 September 2015, the deportation order was signed and served on 18 th September 2015 and the decision maintained in the Pre-Action protocol response letter.
On 9 December 2015, the applicant made the instant judicial review application challenging the respondent's decision to certify his Article 8 claim. There was no challenge to the certification of the Article 3 claim.
The applicant sought and, on 18 th May 2016, was granted permission by Collins J in the following terms:
The relationship with Ms Digpal seems to exist and there was material which even at the time of the decision supported it. But, as the rights of the child are at issue, it is appropriate to consider the present situation.
The applicant has a little merit, but the test is whether it would be proportionate having regard to the applicant's and his partner's and daughter's rights to remove him, albeit perhaps temporarily. The
suggestion that they could go to Sierra Leone is obviously likely to be a key issue in this appeal.
Although initially contended by the respondent that the Article 8 claim had been certified under s94(1), this was no longer a live issue at the hearing before me, the respondent accepting that only the Article 3 claim had been certified under s94(1); the applicant has an out of country appeal against the refusal of his Article 3 claim. The Article 8 claim was certified under s94B.
The letter of 11 th September 2015 considers (in so far as is relevant to the s94B challenge), in sub-headed paragraphs, the applicant's immigration history ([3]–[8]), the reasons for his deportation ([9]–[13]), ‘ Zambrano’ ([14]–[17]), Article 8 ([18]–[22]), ‘very compelling circumstances’ including his history of offending, the public interest in his removal, the impact on his family of his removal, the best interests of his children, the impact of removal on his private life and his arrival prior to the age of 18 ([23]–[[88]). [115]–[116] consider and decide certification under s94B in the following terms:
- Consideration has been given to whether your article 8 claim should be certified under section 94B of the 2002 Act. The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring. The Secretary of State does not consider that such risk exists because there is no evidence to indicate that you have a subsisting and genuine parental relationship with a child; as noted above you were not cohabiting with your partner and your daughter prior to your imprisonment; or your claimed son from a (sic) your previous relationship. Further to this there is no evidence submitted which would indicate that there compelling (sic) circumstances in your case which would prevent your daughter or claimed son from accompanying you to Sierra Leone or remaining in the United Kingdom with their respective mothers when you are deported. It is noted that none of the children are dependent on you for their right to remain in the United Kingdom. There are no compelling private life matters apparent: you may establish and maintain a private life to a similar standard in your country of origin. 116. Therefore, it has been decided to certify your article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the UK.
The only issue to be determined by the Tribunal is the lawfulness of the decision to certify under s94B. The applicant relies upon the following grounds:
(a) “The respondent has made a material mistake of fact/failed to consider material matters and that relevant material matters were not considered.”
(b) “The respondent failed to consider or apply policy/failed to consider material matters relevant to procedural fairness.”
With regard to the first of those grounds, the applicant submitted the respondent had failed to give adequate consideration to evidence submitted that he was married to Ms Digpal and that he maintained a relationship with Ms Digpal and his daughter as a husband/father. He submitted that it was plain from the evidence filed with the judicial review application form that the respondent's conclusions were unsustainable. In making this submission, the applicant relied upon post decision evidence. The applicant submitted that the Tribunal was not, when considering the lawfulness of the certification of a claim under s94B, confined only to consideration of the material that was before the respondent on the date of the decision but should consider all the material presently before the Tribunal
“in order to assess whether the respondent's analysis of the facts is undermined by a failure to consider material matters, or whether the decision maker simply got the facts wrong.”
The applicant submitted that it was “particularly clear” from the documents submitted with the claim form that the applicant was in a subsisting relationship with Ms Digpal. The applicant also submitted that the duty of the respondent under s55 Borders, Citizenship and Immigration Act 2009 obliged the respondent to consider the welfare of his daughter and this had not been done; furthermore, it could not be assumed that a correct determination of the facts would have made no difference to the decision to certify under s94B.
With regard to the second ground, the applicant referred to the respondent's policy on certification under s94B, as amended following Kiarie and Byndloss [2015] EWCA Civ 1020. Particular reference was made in the grounds accompanying the application, by way of example, to paragraph 3.27 and the absence of a return route. The applicant referred to the Ebola outbreak and the poor travel infrastructure which, it was submitted, gave rise to a significant risk that the applicant would face serious difficulties and that the respondent had failed to consider this possibility thus amounting to a procedural breach of the applicant's Article 8 rights. This was not significantly pursued in those terms before me. Rather the applicant relied upon the Guidance issued to Home Office staff on 1 December 2016, which had been produced following Kiarie and Byndloss v SSHD [2015] EWCA Civ 1020. It was therefore, it was submitted, the correct process to be followed. There had been no formal application to amend the grounds to include reliance upon this guidance. Nor was it referred to in terms in the skeleton argument submitted by the applicant although reference is made to the claimed failure by the respondent to follow the...
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Upper Tribunal (Immigration and asylum chamber), 2017-03-08, [2017] UKUT 122 (IAC) (R (on the application of Ayache) v The Secretary of State for the Home Department (paragraph 353 and s94B relationship))
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