R (on the application of Ayache) v The Secretary of State for the Home Department (paragraph 353 and s94B relationship)  UKUT 00122 (IAC)
This case before the Upper Tribunal (Immigration and Asylum Chamber) (UT) concerned a Judicial Review challenge brought by the Applicant against the decision of the Respondent Secretary of State for the Home Department (SSHD) to certify his human rights claim as unfounded and to deport him.
Brief Facts and Chronology
The Applicant is a citizen of Sierra Leone born on 07/07/82. He was issued a visa on 11/08/95 and entered the United Kingdom (UK) on 17/08/95, aged 13. He subsequently applied for, and was granted, indefinite leave to remain in the UK on 24/07/96.
On 05/12/03 the Applicant, then aged 21, was convicted of two counts of conspiracy to handle stolen goods; two counts of theft, robbery and possessing a firearm with intent to commit an illicit offence. He was sentenced to five years’ imprisonment.
Although notice of an intention to deport the Applicant was given by the Respondent on 11/05/04, this was not pursued.
The Applicant was convicted for further offences as follows:
“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 10/02/15, the Respondent served the Applicant with a decision to deport him. The Applicant made representations against this decision on the basis that it would breach his human rights under Articles 8 and 3 of the European Convention on Human Rights (ECHR) because of his relationship to his partner, their daughter together and his son from a previous relationship. The Applicant also argued that deportation would place him at risk because of the deadly outbreak of the ebola virus in Sierra Leone.
The Respondent rejected the assertion that the Applicant had a subsisting and genuine parental and concluded that had not been cohabiting with either his partner, daughter or son. Further, that given the Applicant’s immigration history and the public interest, there were no compelling and compassionate circumstances in existence or risk of serious irreversible harm if he were deported.
On 11/09/15 therefore, the Respondent certified the Applicant’s arguments under Articles 3 and 8 ECHR as unfounded under section 94 and 94Bof the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) respectively.
A deportation order was signed on 15/09/15 and served on the Applicant on 18/09/15.
As the Respondent decision maintained her position in a Pre-Action protocol response letter the Applicant commenced Judicial Review proceedings solely challenging the certification of his Article 8 ECHR rights on 09/12/15. He submitted further evidence to the UT with his Judicial Review application setting out that he was, in fact, married to his partner and had maintained a genuine and subsisting relationship with her and their daughter.
Question of Law
The questions of law before the UT were
Decision of the UT
the Applicant’s further evidence as part of the Judicial Review claim
The UT held that in exercising its supervisory jurisdiction to determine whether the Respondent had acted rationally post decision evidence could not be relevant in a judicial review of a decision to certify. As such the Respondent could therefore not be criticized for failing to take account of information of which she was not aware at the date of the decision under challenge.
The appropriate course of action, therefore, would have been for the Applicant seeking to rely upon further evidence not previously before the Respondent to withdraw this application, present the new material in the form of further submissions which would be considered in accordance with paragraph 353 of the Immigration Rules.
In spite of this finding the UT nevertheless went on to consider the second question of law.
whether the decision of the SSHD to certify the Applicant’s Article 8 ECHR claim had been lawful
The Respondent accepted that she had failed to carry out an assessment of the proportionality of the Applicant’s removal. This was contrary to her own Guidance dated 01/12/16. Nevertheless, whilst the Applicant’s absence from the UK was accepted as likely to result in some “negative emotional impact” on the Applicant’s family there had been no evidence before the Respondent that the Applicant’s removal from the UK would be any different or worse for his family than his removal from society whilst imprisoned.
The court held that there would be no real risk of serious irreversible harm to the Applicant nor his family and that the Respondent had acted rationally in certifying the Applicant’s Article 8 claim.
The Applicant’s claim was dismissed with costs.