Administrative Court quashes SSHD's decision to certify Claimant's human rights claim as clearly unfounded - HM (Malawi)  

R (on the application of HM (Malawi)) v Secretary of State for the Home Department [2010] EWHC 1407 (HHJ Gilbart QC, the Honorary Recorder of Manchester)
> judgment

In this case, the Claimant relied on various changes in his circumstances since the AIT dismissed his appeal against the SSHD’s decision to deport him. In particular, he pointed to the fact that he and his wife had since married, and the fact that her GP had advised against her relocating to Malawi, in view of her heart condition.

HHJ Gilbart QC agreed that the SSHD had been wrong to conclude that the human rights claim was clearly unfounded. His Lordship noted that the previous AIT decision had been premised on the AIT’s doubts as to the permanence of the relationship; the marriage potentially addressed those doubts, and so would necessitate an assessment of her rights, and the reasonableness of her relocation to Malawi; see [54(a)]:

“...In the absence of some evidence that the marriage was not entered seriously, or that they were not a genuine couple, that must be seen as a substantial new fact since the original decision. After all, getting married can be the best way of showing those who doubt the commitment of one or both parties to a relationship that it really is a serious one...”

As to the reasonableness of the relocation of the wife, HHJ Gilbart QC was critical of the SSHD’s approach; [56 & 58]:

“56. In paragraph 20 the SSHD seeks to argue that if she chooses not to relocate to Malawi, that will be her decision, and that any split in family life would not be attributable to the SSHD. That is a seriously flawed piece of reasoning. On any reasonable view, the only reason for any question of her removal to Malawi arising is the SSHD's decision to deport HM. If it is reasonable for her not to follow him, then her decision not to do so will be a reasonable response to his being deported....
...
58. As to her medical treatment, it relied on the AIT's findings. As noted above, the findings of the AIT in her case deal only with whether treatment and medication were available, and not with its cost. In the real world, accessibility to medical treatment (including medication) requires both that it is potentially available and that it is affordable by the patient concerned...The AIT's findings deal with the first issue of potential availability in her case, but not with the latter issue of affordability, beyond noting that some cost could be involved. It is hard to imagine anyone considering the case of a person who requires sustained treatment for serious conditions reaching a view on whether a move to a much less developed country would be reasonable, without exploring the issue of the costs of medication...”

HHJ Gilbart QC expressed concern about the previous AIT’s comments on the sentences received by the Claimant; [17]:

“The Tribunal then referred to what it called the Claimant's "serial criminality" and, referring to its own unidentified experience of criminal courts, expressed surprise that he had not served a criminal sentence before. I consider that this was an unfortunate remark, outside the competence of the AIT in its jurisdiction. The choice of sentence was for the criminal courts which had sentenced him, and not for the AIT to question. My experience of the criminal jurisdiction (as a circuit judge and then as the Resident Judge of a very large Crown Court centre) suggests that the courts which had sentenced him had in fact passed sentences undeserving of that criticism....”

Moreover, his Lordship went on to note that the recommendation for deportation made by the sentencing Judge had not been made on a proper basis; see [87 & 88]:

“...the issue of detriment was never addressed by the judge...it is plain that it did not accord with the relevant test, as counsel for the SSHD conceded before me. That being so, when this matter is reconsidered, it would seem to me very unwise that the SSHD should treat this as a recommendation for deportation to which weight would attach. Further, when she reconsiders both decisions, she will have to do so in the light of current practice on recommendations for deportation.”

Comment

In this case, the Court recognised that there is a very high threshold for the SSHD to surmount in order to certify a claim as clearly unfounded under s.94 of the NIAA 2002 (thereby depriving the Claimant of an in-country right of appeal); see in particular [51]. His Lordship was critical of the SSHD’s reliance on the previous AIT determination, pointing out that this had been premised on the AIT’s concerns about the strength of the relationship between the Claimant and his then fiancée, and so had not involved a proper analysis of her rights; and, in particular, the reasonableness of her relocation to Malawi. The learned Judge pointed out that far more was required in that respect.

Practitioners will also note that HHJ Gilbart QC agreed that the grant of ILR to a person who has committed various offences may alter the weight that can be attached to those particular offences in any consequent deportation action; see [69 & 70].

Finally, in criticising the recommendation for deportation, his Lordship referred to the very useful case of R v Kluxen [2010] EWCA Crim 1081. In that case, the Court of Appeal pointed out that recommendations for deportation should not be made in cases where the automatic deportation provisions in the UK Borders Act 2007 apply; see [9]. The Court also indicated that in those cases where the automatic deportation provisions do not apply, the ‘detriment’ test required for a recommendation for deportation will rarely be satisfied in the case of an offender none of whose offences merit a custodial sentence of 12 months or more; see Kluxen at [27].

HM was represented by Vijay Jagadesham of Garden Court North Chambers and Karen Rimmer from Paragon Law Solicitors .

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> Reference to this case is made on the blog site "Free Movement - updates and commentary on immigration and asylum law" http://freemovement.wordpress.com/?s=HM+malawi