1. The strength or otherwise of an underlying Article 8 case is relevant to a decision by the respondent whether to certify a case under s.94B of the Nationality, Immigration and Asylum Act 2002, in that it may disclose a case without a specific case being advanced by the applicant as to why temporary separation whilst an appeal is pursued from abroad may lead to a real risk of serious irreversible harm.
2. In passing s.94B into law, Parliament has plainly and unarguably envisaged the possibility of family members, including children, being separated from the individual being removed for a temporary period whilst an appeal is pursued from abroad as well as the possibility that, in some cases, appeals pursued abroad will succeed. It also envisaged the possibility of some appeals from abroad after certification under s.94B succeeding under Article 8. It is not enough for an individual resisting removal pursuant to certification under s.94B merely to rely upon general assertions of the impact of temporary separation from family members including children. There must be specific engagement with the reasons why it is said that there is a real risk of serious irreversible harm during such temporary absence, particularly if the underlying substantive claim does not on its face raise the possibility that the impact on the family members will be beyond what one may generally assume will be the impact when family members are separated.
3. The judgment of the majority of the European Court of Human Rights in De Souza Ribeiro v France (Application No.22689/07) – HEJUD [2012] ECHR 2066 did not state in terms that a suspensive remedy was necessary whenever a claim is not manifestly ill-founded in relation to Article 8. What the majority spoke of was the need to have ‘sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality’. Judicial review proceedings are such an appropriate procedural safeguard.
Citations:
[2015] UKUT 537 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 31 January 2022; Ref: scu.553206
