Alighanbari, R (on the application of) v Secretary of State for the Home Department

The Claimant, Karim Alighanbari, is an Iranian national born on 11 April 1989, and is thus now 24 years old. By this application for judicial review, he challenges decisions made by the First Defendant, the Secretary State for the Home Department ("the Secretary of State") made on 25 July 2011, 23 August 2011 and 6 September 2011 and a decision made by the Second Defendant, the First Tier Tribunal (Immigration and Asylum Chamber) ("FTT") on 13 September 2011 ("the FTT Decision"). By her decisions, the Secretary of State refused the Claimant leave to enter the UK and decided to remove him to Slovenia, as a safe third country under the Council Regulation 343/2003 ("the Dublin II Regulation"). By the FTT Decision, the FTT refused to entertain the Claimant's appeal against one or more of the Secretary of State's decisions. At the heart of the Claimant's case is an assertion that he has a right of appeal that can be exercised prior to removal from the UK (an "in-country" right of appeal) against the decision to remove him to Slovenia and that he cannot be so removed until that appeal is determined by the FTT. The case raises an issue as to what comprises the making, by an applicant, of a "human rights claim", which, in certain circumstances, gives rise to an in-country right of appeal.

Mr Anas Ahmad Khan appeared for the Claimant and Mr David Blundell appeared for the Secretary of State. The FTT was not represented, but did write to the Court providing relevant information.

The Claimant arrived in the UK on 29 March 2011 and claimed asylum. Certain family relations were living in this country. (Previously, between 2000 and 2004, he had lived in the UK with one of his half-sisters, but when he was 15 he returned to Iran). In March and in June 2011, he was interviewed, and he submitted a detailed witness statement, in relation to his claim for asylum. On 7 April 2011, the UKBA discovered that, en route to the UK from Iran, he had passed through Slovenia and had there claimed asylum on 24 December 2010. On 25 July 2011 the Slovenian authorities accepted responsibility for the Claimant's asylum claim, and, by decision letter of the same day ("the 25 July Decision"), the Secretary of State refused the Claimant's claim for asylum and certified it on safe third country grounds, pursuant to paragraphs 4 and 5 of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 ("the 2004 Act"). The 25 July Decision advised him of a right to appeal after removal (i.e. an out-of-country right of appeal). On 18 August 2011, the Claimant was detained pending removal.

On 23 August 2011, by Notice of Refusal of Leave to Enter ("the 23 August Notice") the Secretary of State issued a decision refusing the Claimant leave to enter the UK and set directions for his removal, under the Dublin II Regulation, from the UK to Slovenia on 7 September 2011. The 23 August Notice also explained that the Claimant only had an out-of-country right of appeal as his claim for asylum had been certified on safe country grounds under Sch. 3 of the 2004 Act.

On 2 September 2011 the Claimant's new solicitors, Thompsons, sent a letter before action ("the 2 September letter") to the UK Border Agency ("UKBA"), challenging the safe country certification, and raising human rights grounds under Article 8 ECHR. On 6 September 2011, the Claimant appealed to the FTT, asserting that his removal was contrary to Article 8 ECHR. A few hours later, on the same day, the Secretary of State responded to the 2 September letter, addressing the Claimant's claims under Article 8 ECHR and certifying that human rights claim as clearly unfounded under paragraph 5(4) of Sch. 3 to the 2004 Act ("the 6 September Decision"). Again on the same day, the Claimant lodged this application for judicial review of the 25 July Decision, seeking to prevent removal to Slovenia. As a result, the removal directions were cancelled. By the FTT Decision, on 13 September 2011, the FTT refused the Claimant's appeal for lack of jurisdiction. In response to a request in September from the Claimant, by letter dated 11 October 2011, the Secretary of State reconsidered the Claimant's claim, but refused to change her decision to remove.

In September 2011, the Claimant was given permission by the Court to put in further evidence to substantiate his Article 8 ECHR claim, based on family life and his mental health. In October 2011, short witness statements from the Claimant's mother, two of his half sisters and his half brother were served. Each asserted that the mother, sisters and brother all reside in the UK and that they “are a close family". They had supported the Claimant in his illness and would fear for his mental state if he was removed to Slovenia. They gave no evidence of the Claimant’s involvement with the rest of the family. At that time, the Claimant's grounds were amended to include a challenge to the FTT Decision and the FTT was added as second defendant. Upon granting permission on 9 May 2012, Mrs Justice Lang directed the FTT to file evidence as to when it had received the appeal notice and whether, as at 13 September 2011, it had received the 6 September Decision. On 14 June 2012, the FTT provided certain information to the Court.

The relevant legal background concerns rights of appeal against various types of immigration decision, and when and where those rights can be exercised, both generally and in the specific context of asylum claims and the Dublin II Regulation.

The Dublin II Regulation contains a framework for establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one Member State of the EU by a third country national. The Regulation seeks to prevent forum-shopping among EU member states by requiring the country of first arrival, if asked to do so, to process an asylum-seeker's claim. The basic principle is that if a person has claimed asylum in one Member State and then subsequently makes a second claim for asylum in another Member State that person should as a general rule be returned to the first Member State for the asylum claim there to be considered. The first Member State is obliged to "take back" the person from the second Member State. In the UK, the 2004 Act gives effect to the Dublin II Regulation regime. Under Sch.3, the Secretary of State is entitled to remove a person making an asylum or human rights claim to a safe third country, subject to a certification process: see further paragraphs 22 to 27 below.

Part 5 of the 2002 Act deals with immigration and asylum appeals in general. Section 82(1) gives a right of appeal to a person in respect of whom an immigration decision is made. "Immigration decision" is defined in s.82(2) by the enumeration of specified types of decision. The list includes, in s.82(2)(a), refusal of leave to enter the United Kingdom. The issue of a safe country certificate under Sch. 3 of the 2004 is not an "immigration decision". A s.82(1) appeal against an immigration decision must be brought on one or more the grounds specified in s.84(1). Those grounds include the grounds that the decision or removal would be incompatible with the appellant's rights under the ECHR: see s.84(1)(c) and (g).

Section 88 is headed "Ineligibility". It applies to immigration decisions of the type specified in s.82(2)(a), (b), (d) or (e). S.88(2) provides that a person may not appeal under s.82(1) against such an immigration decision, when taken on one or more of a number of specified grounds. These grounds include, at s.88(2)(d), the ground that he "is seeking to enter or remain in the United Kingdom for a purpose other than one for which entry or remaining is permitted in accordance with immigration rules". However s.88(4) provides that the removal of the right of appeal effected by s.88(2) does not apply to an appeal where it is brought on human rights or race discrimination grounds under s.84(1)(b)(c) or (g).

Section 92 deals with the right to bring an appeal from within the United Kingdom (an "in-country" appeal). It provides, so far as relevant, as follows:

“(1)

A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.

(2)

This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c),(d),(e)(f), (ha) and (j)”

A decision specified in section 82(2)(a) is thus not included as one giving rise to an in-country appeal.

However section 92(4)(a) of the 2002 Act further provides that section 92 also applies to an appeal against an immigration decision (and thus an appeal can also be brought while the appellant in the United Kingdom) if the appellant

“has made an asylum claim, or a human rights claim, while he is in the United Kingdom”

Section 113 of the 2002 defines a human rights claim as follows:

“‘Human rights claim’ means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or to require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 ... as being incompatible with his Convention rights”

In R (on the application of Nirula) v First Tier Tribunal (Asylum and Immigration Chamber) and the Secretary of State for the Home Department [2011] EWHC 3336 (Admin), and on appeal [2012] EWCA Civ 1436 [2013] 1 WLR 1390, the question arose as to the point in time at which an appellant "has made ... a human rights claim" within the meaning of s.92(4)(a) of the 2002 Act, and in particular whether, to fall within s.92(4)(a), it is necessary for the claim to have been made before the notice of appeal to the FTT. There, the claimant, from Nepal, was notified by the Secretary of State of a decision to remove him as an illegal entrant and at the same time informed of a right of appeal which could only be exercised after he had been removed. The claimant appealed to the FTT and in his notice of appeal raised for the first time a claim under Article 8 ECHR. He had never previously invoked any provision of the ECHR to justify his presence in the UK. The FTT, raising the issue of its own jurisdiction, decided it had no jurisdiction to hear the purported appeal. On the claimant's application for judicial review of the FTT's refusal of jurisdiction, two issues arose. First, was the raising of a human rights claim for the first time in the notice of appeal to the FTT sufficient to amount to the making of a human rights claim within the meaning of "has made" in s.92(4)(a) (and thus giving the claimant an in-country right of appeal)? Secondly, could the FTT itself raise the jurisdiction issue of its own motion, or did the fact that the Secretary of State did not raise the issue before the FTT mean that it could not be relied upon subsequently? This raised what has been termed the "constitutive jurisdiction" point. I return to this in paragraphs 28 and 29 below.

As regards the first issue, Mr Ockleton sitting as a Deputy High Court Judge, held (at §§21 to 39) that, for a human rights claim to fall within s.92(4)(a), it must have been made, at the least, prior to the filing of the notice of appeal to the FTT; and if it is made only for the first time in the notice of appeal itself, it does not give rise to an in-country right of appeal: see §29. That was sufficient to dispose of the issue on the facts of Nirula. Mr. Ockleton went on to observe that, in his view, a human rights claim will only give rise to an in-country right of appeal under s.92(4)(a) where it is made, not merely prior to the notice of appeal, but in fact prior to notice of the very immigration decision which is the subject matter of the appeal: see §§31, 36 and 37.

On appeal to the Court of Appeal, Longmore LJ upheld Mr. Ockleton's decision to the effect that the human rights claim has to be made before the notice of appeal is served: see §§17 to 25. He left open the further question considered by Mr. Ockleton, stating (§25) that "it is unnecessary to decide whether his further decision (that the claim had to be made even before a notice of decision was given) is correct. That should await decision in a case where it matters."

That question does arise in the present case. It is common ground that (unlike the position in Nirula) a "human rights claim" was made prior to the notice of appeal, but after the relevant immigration decision. (Whether such a claim was made before the immigration decision is itself disputed and is the subject of Issue 2 below.) Mr Blundell invited me to follow the view of Mr Ockleton at first instance in Nirula on the issue expressly left open by Longmore LJ. In oral argument, Mr Khan accepted that Mr Ockleton's view on this point is correct. Accordingly, on that basis, and without hearing any further argument to the contrary, I proceed on the basis set out by Mr Ockleton at §§31, 36 and 37, namely that in order to give rise to an in-country right of appeal against an immigration decision under s.92(4)(a), the claimant must have made a human rights claim prior to notice of the Secretary of State's decision, the subject of that appeal.

Section 78 of the 2002 Act provides that a person may not be removed from the United Kingdom while his or her appeal under s.82(1) is pending. S.104 (1) provides that an appeal is pending "during the period (a) beginning when it is instituted and (b) ending when it is finally determined, withdrawn or abandoned (or when it lapses under section 99) ".

Provision for time limits for appealing to the First Tier Tribunal is made in The Asylum and Immigration Tribunal (Procedure) Rules 2005 ("the 2005 Rules"). Rule 7(1) provides that:

“A notice of appeal by a person who is in the United Kingdom must be given-

(a)

if the person is in detention under the Immigration Acts when he is served with notice of the decision against which he is appealing, not later than 5 days after he is served with that notice...”

Rule 10 of the 2005 Rules is headed "Late notice of appeal" and provides as follows:

“(1)

If a notice of appeal is given outside the applicable time limit, it must include an application for an extension of time for appealing, which must-

(a)

include a statement of the reasons for failing to give the notice within that period; and

(b)

be accompanied by any written evidence relied upon in support of those reasons.

(2)

If a notice of appeal appears to the Tribunal to have been given outside the applicable time limit but does not include an application for an extension of time, unless the Tribunal extends the time for appealing of its own initiative, it must notify the person giving notice of appeal in writing that it proposes to treat the notice of appeal as being out of time.”

Once the Tribunal gives the person notice under rule 10(2), then that person has the opportunity to show that there were special circumstances for failure to give notice of appeal in time, and under Rule 10(5), the Tribunal may extend time for appealing if satisfied that by reason of special circumstances it would be unjust not to do so. Thus, in summary, where an out of time notice of appeal does not seek an extension, the FTT has a discretion to extend time (a) of its own motion or (b) upon application by the appellant where special circumstances are shown.

Rule 9(1) provides that where a person has given notice of appeal and there is no relevant decision, the Tribunal shall not accept the notice of appeal. Rule 9(2) provides that in those circumstances, it must notify the parties and take no further action.

Paragraph 5 of Sch. 3 to the 2004 Act provides as follows:

“(1)

This paragraph applies where the Secretary of State certifies that-

(a)

it is proposed to remove a person to a State to which this Part applies, and

(b)

in the Secretary of State's opinion the person is not a national or citizen of the State.

(2)

The person may not bring an immigration appeal by virtue of section 92(2) or (3) of that Act (appeal from within United Kingdom: general)

(3)

The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act ... in reliance on-

(a)

an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom;'s obligations under the Refugee Convention, or

(b)

a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State

(4)

The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights to which this sub-paragraph apples unless it is satisfied that the claim is not clearly unfounded.

(5)

Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts a matter other than that specified in sub-paragraph 3(b).”

Slovenia is a safe country to which Part 2 of Sch. 3 applies: see paragraph 2(x). Paragraph 1(1) of Sch. 3 defines "human rights claim", in essentially same terms as in s.113(1) of the 2002 Act.

In summary the effect of these provisions is as follows. The Secretary of State may certify that it is proposed to remove a person to a safe third country. Where she so certifies, then there is no in-country right of appeal under s.92(2) or 92(3) of the 2002 Act (para. 5(2)), nor an in-country right of appeal, under s.92(4)(a), either in respect of an asylum claim (para. 5(3)(a)), or in respect of a human rights claim which asserts that the possibility of further removal from the safe country to another state would be unlawful under the HRA (para. 5(3)(b)). As regards any other human rights claim, the in-country right of appeal is also excluded, under para. 5(4) and (5), but only where the Secretary of State has certified the human rights claim as clearly unfounded. Thus, where he has made such a human rights claim, then the claimant does have an in-country right of appeal under s.92(4)(a) unless the Secretary of State has also certified that human rights claim as clearly unfounded under para. 5(4).

In R (on the application of AM (Somalia)) v Secretary of State for the Home Department [2009] EWCA Civ 114, the Court of Appeal held that once an in-country appeal has been brought (by filing of notice of appeal), a subsequent “unfounded” certification, under para. 5(4) of Sch.3 to the 2004 Act, cannot remove the right of an in-country appeal under s.92(4)(a): see judgment of Sedley LJ at §§13-17. Later certification cannot stifle an appeal which has already been brought.

So in the present case, it is common ground that, if the filing of the notice of appeal on 6 September 2011 was a valid appeal in respect of a human rights claim, then the subsequent certification under para. 5(4) of Sch. 3, made later on the same day, in the 6 September Decision, was of no effect and did not remove the Claimant's in-country right of appeal. On this hypothesis, by the time of the issue of the "clearly unfounded" certificate, an in-country appeal had been brought.

As to the meaning of "clearly unfounded", the test is that the Secretary of State should only certify a claim if, after reviewing the available material, she is "reasonably and conscientiously satisfied that the allegation must clearly fail": R (Yogathas) v SSHD [2003] 1 AC 920 per Lord Bingham §14.

A decision of certification of a claim as unfounded under para. 5(4) of Sch. 3 (as well as under s.94(2) of the 2002 Act) may be challenged by way of judicial review on rationality grounds. Although the point may not be entirely free from doubt, I proceed on the basis that the correct approach of the Court to a judicial review challenge to a certification is that set out by Lord Phillips in ZT (Kosovo) v SSHD [2009] UKHL 6: effectively that, where there is no dispute as to primary fact the Court itself should ask itself whether the claim is clearly unfounded i.e. the same question as the Secretary of State had to consider: see ZT Kosovo, per Lord Phillips §23, and also Lord Brown §76 and Lord Neuberger §83 (cf. Lord Hope at §§54, 55 citing Razgar and Lord Carswell §65); as considered by Elias LJ in R (on the application of MD (Gambia)) v SSHD [2011] EWCA Civ 121 §52.

Mr. Khan further seeks to rely upon what he refers to as the FTT's "constitutive jurisdiction" in support of a contention that, even if the Claimant does not have an in-country right of appeal (or even if the appeal to the FTT was brought out of time), nevertheless the FTT had, and has, jurisdiction to entertain his appeal. In this regard, he relies upon a passage in the judgment of Sedley LJ in Anwar and Adjo v Secretary of State for the Home Department [2010] EWCA Civ 1275 at §§19 to 23 where he distinguished between the FTT's jurisdiction "to embark upon trying an issue ("constitutive jurisdiction")" and its jurisdiction to continue and determine that issue ("adjudicative jurisdiction"). Mr Khan's essential proposition, based on Anwar, is that certain objections to the FTT's jurisdiction do not prevent the FTT from having "constitutive jurisdiction", but merely operate as a bar to the FTT proceeding to exercise its "adjudicative jurisdiction", and, further, that, in order to operate as such a bar, the objection must be taken by the Secretary of State. The statutory bar upon an in-country appeal under s.92(1) is such an objection to jurisdiction. As Sedley LJ put it in Anwar §23, that bar "is not of the kind that operates independently of the will of either party so as to bind the tribunal regardless. It offers a point which can be but need not be taken".

In Nirula, supra, the claimant relied upon Anwar in support of the proposition that the point that FTT had no jurisdiction had to be expressly taken by Secretary of State, which she had not done. It was not open to the FTT to take the point of its own motion. At first instance, Mr Ockleton expressed doubts about aspects of the reasoning in Anwar, but held that in fact the jurisdiction point had been taken by the Secretary of State in any event. In the Court of Appeal, Longmore LJ addressed the point (at §§26 to 34). After setting out in full §§19 to 23 of Anwar, Longmore LJ rejected the submission that the jurisdiction objection had to be taken by the Secretary of State herself and concluded that such a jurisdiction point could be taken by the FTT, of its own motion: see §§30, 33 and 34.

Article 8 ECHR prohibits unjustified interference with the rights to private and family life. A relationship between adult siblings or between a parent and an adult child potentially falls within the scope of family life within Article 8 ECHR, but does not automatically do so. Whether it does is a question of fact in each particular case as to whether there exist strong enough emotional ties to constitute family life. What has to be shown is "further elements of dependency involving more than the normal emotional ties": see Kugathas v SSHD [2003] EWCA Civ 31 §§14 to 19, 24. Further, whilst principally Article 8 protects an existing family life, there is authority that it is also necessary to have regard to the development of potential family life; and Article 8 imposes an obligation to refrain from inhibiting the development of real family life in the future: see Macdonald’s Immigration Law and Practice (8th edn) § 8.81.

The Claimant's family members are as follows. His father and his full brother are in Iran. His mother has been in the UK from time to time on a visitor's visa. She has recently been granted leave to remain. He also has three half sisters and a half brother, all of whom were residing in the UK at the date of his arrival on 29 March 2011. Two of his half sisters and his half brother have been granted leave to remain as refugees. His third half sister is a German citizen, but lives in this country.

The Claimant's asylum screening interview took place on 30 March 2011. He was not legally represented. The Claimant said he was fit and well and had no medical conditions. He confirmed that he was claiming asylum on grounds of fear of persecution in Iran. He said he needed accommodation, explaining that he could not live with his sisters or brother in the UK, as they had no room. As for his reasons for coming to the UK and not being able to return to Iran, he gave answers relating to his claim of persecution in Iran, referring to his problems with the government and his involvement in protest.

Asked why he did not apply for asylum in other countries he passed through, he answered "because I wanted to be far away as possible". In the same box, he also recorded as stating "I wanted to be with my family" - although the question to which this was a response is not clear. In a further question, he was asked why he didn't claim asylum in Turkey or any of the countries he stopped at. He replied "Because I heard Turkey is friends with Iran. I did not feel safe there. I wanted to come to UK to be with my family". This is the second of the answers upon which the Claimant now relies specifically. Later in the interview, after giving details of his various family members and their status, he added "last saw mum & dad 4 months ago (Dec 2010). long time for brother and sisters. no other family in UK".

The Claimant submitted a witness statement dated 6 June 2011 in support of his asylum claim. That statement had been prepared by the Claimant's then legal representative. The statement contained a very detailed explanation, running to over 15 pages, of events in Iran, which were said to support his claim of risk of persecution in Iran. Then, at paragraph 77, after explaining his arrival at Luton, the statement explained the reason why he had not claimed asylum elsewhere, in the following terms:

“I did not claim asylum in any other country that I stopped in because I did not know where I was and my family had told me that Mr Bahmani [the person from Iran who had assisted his journey] would take me somewhere safe”

In paragraphs 78 to 80, the Claimant again described the various family members living in the UK and their status. He went on to say, since he had come to the UK (at the end of March) he had not had contact with his mother and further that she was not talking to him. He had seen his half sisters and brother once or twice, and he repeated that he was unable to live with them, because they did not have enough room.

On the next day, 7 June 2011, the Claimant was interviewed about his asylum claim, in the presence of his legal representatives. He confirmed that his written statement contained a full account of why he was claiming asylum. In the interview, he said again that he had no medical conditions. He again gave details of his family in the UK. He was living in NASS accommodation. Asked how often he saw his family, he replied "Since I came, I saw them once or twice" and repeated that he was not speaking to his mother. Toward the end of the interview, in response to question 169, asking whether there are other reasons (other than those already indicated) why he wished to remain in the UK, he answered "I would like to be with my family". This response is addressed further in paragraphs 78 to 80 below.

In summary, the Claimant's own evidence in March and June 2011 was that he was not living with any of his family, he was not even talking to his mother and that, as for his half sisters and half brother, he had seen them only very sporadically. There is no suggestion of an existing family life in the UK, nor of the possibility of the establishment of such a family life. In fact the evidence suggests rather the opposite - that at the time he did not have an established or prospective family life with his mother and siblings in the UK.

By letter dated 25 July 2011 addressed to the Claimant, bearing the reference A1457166, and headed "Certification of Asylum Application on Third Country Grounds", the Secretary of State referred to the Claimant's application for asylum, to the fact that, under the Dublin II Regulation, Slovenia had accepted responsibility for examining his application, and, in the light of the provisions of paragraph 3(2) of Sch. 3 of the 2004 Act, the Claimant was returnable to Slovenia; there were no grounds for departing from the Secretary of State's practice of declining to examine an asylum application, where there is a safe third country where the applicant can be sent. The letter concluded:

“ Third country certificate

It is hereby certified that the conditions mentioned in paragraphs 4 and 5 of Part 2 of Schedule 3 of the .... 2004 Act are satisfied, namely that:

a)

it is proposed to remove you to Slovenia

b)

in the Secretary of State's opinion you are not a national or citizen of Slovenia

Right of appeal

You should refer to the attached notice of decision, appeals form and accompanying leaflet given to you with this certification for details of how and when to appeal”

However, there is no evidence before me, and neither party has contended, that any such "notice of decision" was attached to the letter when sent on 25 July 2011, nor that any information about "how and when to appeal" was provided at that time. It is common ground that a decision of third country certification does not give rise to any appealable decision. On that basis, I assume that the appeal referred to at the end of the 25 July Decision must be a reference to an appeal in respect of some decision other than the substantive content of that Decision. It is possible that the UKBA intended to attach to the 25 July Decision a notice of decision refusing leave to enter the UK, along the lines of the 23 August Notice, which itself was issued subsequently.

On 23 August 2011, the Secretary of State issued the formal notice of refusal of leave to enter. The 23 August Notice was addressed to the Claimant and stated, inter alia:

“Port Ref: LTN/3770127

HO Ref: A1457166

...

COH ID: 16778920

...

You have applied for asylum in the United Kingdom. The Secretary of State has decided to refuse your application for the reasons set out in the attached certificate .

I therefore refuse you leave to enter the United Kingdom”

On the next day, 24 August 2011, the UKBA faxed both to the Claimant's then solicitors, Blakemores and to Morton Hall IRC (for service on the Claimant) a number of documents, including, at least, the 23 August Notice. The version sent to Morton Hall appears, from fax headers on the copies before me, to have included the 25 July Decision too. On the same day, the UKBA sent another letter to Blakemores giving reasons for the Claimant's detention and details of his planned removal and referring to the 25 July Decision. This document appears subsequently to have been faxed to the FTT at 3.23pm on 6 September 2011.

In the 2 September 2011 letter, Thompsons wrote specifically to challenge the 25 July Decision, stating:

“The client has got family in the UK who have all claimed and been granted asylum, including mother, sisters and brother. He has lived in the UK with his family and therefore removal will infringe his Article 8 ECHR rights .” ( emphasis added)

The letter went on to refer to the "family" provisions in Article 7 of the Dublin II Regulation, and then to raise Article 8 issues relating to the Claimant's mental health. The 2 September letter did not expressly suggest that the Claimant had previously made a claim of infringement of Article 8. Further the infringement of Article 8 asserted in the letter is based on the claim that the Claimant had lived in the UK with his family. This appears to be a reference to the earlier period he had spent in the UK between 2000 and 2004, since all the evidence suggests that since his arrival in March 2011, he had not lived with any of his family. By contrast, at no point in his earlier interviews and witness statement had the Claimant asserted that he did not wish to be removed because he had lived with his family in the past.

At 2.21pm on 6 September 2011, the Claimant lodged an appeal at the FTT, enclosing a completed standard form notice of appeal ("the Notice of Appeal"), grounds of appeal and the 25 July Decision. In the Notice of Appeal, at section 2 headed "Your Home Office Decision", the Claimant gave details, as requested, of his Home Office reference number, his port reference and, significantly, his "COHID reference" (which was 167789200). In response to the question "Are you sending your Notice of Decision with this form", the box No was ticked and, in the explanation box, the Claimant stated "No notice of decision given". Then in section 3A, in the box provided for an explanation of a late appeal, the Claimant stated "N/A On time as UKBA did not issue Appellant proper notice".

The grounds of appeal stated that "the Respondent's decision is unsustainable in law" by reason of breaches of the Refugee Convention and the ECHR. Paragraph 2 alleged that the decision had not been correctly certified and had not given the Appellant adequate notice of removal and did not inform him of his in-country appeal rights. Paragraph 3 alleged that, because of the Claimant's severe depression, removal would infringe Article 3 ECHR. Paragraph 4 alleged that the decision had failed to consider the Claimant's right to a private and family life, in breach of Article 8 ECHR, relying both on support from his family in the UK and his mental health.

From the terms of the Notice of Appeal itself, there is no direct reference to the 23 August Notice, but only to the 25 July Decision. However, the Notice of Appeal does refer to the COHID reference. The Secretary of State states in the detailed grounds that this is the reference number of the 25 July Decision. On the basis of the documents before me, that COHID reference number does not appear on the 25 July Decision, but does appear on the face of the 23 August Notice. Moreover, from the terms of the Notice of Appeal, Thompsons were also aware of the details of the removal directions (which, again, were contained in the 23 August Notice, but not in the 25 July Decision).

About an hour later, at 3.32pm, the Secretary of State responded to the 2 September letter. The Secretary of State enclosed the UKBA's letter to Blakemores of 24 August 2011 and addressed the Claimant's Article 8 claim in some detail, pointing out, inter alia, that the Claimant was an adult and had not lived with any of his family since arriving in the UK, and that steps would be taken to enable care to be given by the Slovenian authorities for his depression. The letter stated that removal to Slovenia would not infringe the Claimant's Article 8 rights, and concluded by the Secretary of State certifying the Claimant's human rights claim as clearly unfounded under para. 5(4) of Sch. 3 to the 2004 Act and stating that, as a result, the Claimant "may not appeal until after he has left the UK". There is no suggestion that, at the time of writing this letter, the Secretary of State was aware of the fact that the Claimant had, about an hour earlier, lodged an appeal with the FTT.

On the same day, the Claimant lodged the present application for judicial review, challenging the 25 July Decision. It appears that at the time of so doing the Claimant was not aware of the 6 September Decision. At that point, the grounds for challenge were that the decision to remove was an immigration decision under s.82(2)(g), and that the Claimant had made a human rights claim, which had not been certified under Sch. 3 para. 5(4), and therefore he had an in-country right of appeal, which made his removal unlawful.

On 9 September 2011, the FTT received a faxed copy of the 23 August Notice (although it is not clear whether this was the first time it had been provided to the FTT nor by whom it was sent). On 12 September 2011, IJ Kaler considered the Notice of Appeal. On 13 September 2011, the FTT issued a decision, headed "Notice of Appeal where there is no relevant decision etc" and stating as follows:

“The decision against which you are seeking to appeal is not one against which there is an exercisable right of appeal ... or is one where the notice of appeal falls within rule 9(1A)(b) of the ...[2005 Rules]. Accordingly the notice of appeal you have lodged is invalid and the Tribunal will take no further action in relation to it.”

Then on 18 September 2011, IJ Kaler gave his reasons for the FTT's decision, in a document headed "No relevant decision", as follows:

“1.

The Appellant, who is a national of Iran, seeks to appeal a decision by the Respondent to refuse to grant leave to enter the UK issued on 23 August 2011.

2.

The decision has been certified under paragraph 5 of Schedule 3 to the 2004 Act. The Respondent proposes to remove the Appellant to Slovenia, a safe country.

3.

The Appellant has no in country right of appeal.

4.

In the Grounds, the Appellant asserts that his human rights are violated by the decision.

5.

Section 92 of the ... [2002 Act] provides that a person may not appeal under section 82(1) unless it is an immigration decision specified in section 82(2)(c),(d), (e), (f), (ha) and (j).

6.

I am satisfied that the Appellant has no right of appeal under the [2002 Act] as the decision is not one that falls within the definition of an immigration decision as set out in Section 88(2)(d).

7.

Human rights and race relations issues do not assist the Appellant as I have determined that there is no appealable decision for the purposes of Section 82 and therefore Section 84(1)(c) of the 2002 Act is not engaged. I am also satisfied that Section 83 of the 2002 Act does not apply.

...

Decision

No valid appeal”

I do not find IJ Kaler's reasons (particularly those at paragraphs 5 to 7) altogether clearly expressed (see further paragraphs 61 to 64 below). The following, however, is clear. First, the FTT itself has confirmed that, as at that time, it had not received, and was not aware of, the 6 September Decision. Thus, the FTT placed no reliance upon the para. 5(4) certification of the human rights claim as clearly unfounded. Secondly, the FTT was aware of the 23 August Notice, that that Notice was a decision to refuse to grant leave to enter and further itself considered that the Claimant's appeal was an appeal against that decision: paragraph 1. The FTT further considered that that decision had been certified under para. 5 i.e. on safe country grounds. Thirdly, the FTT decided, in terms at paragraph 3, that the Claimant had no in-country right of appeal. Fourthly, the FTT was aware that the Claimant was making a "human rights" claim. Fifthly, the FTT went on to consider that only certain decisions are appealable as immigration decisions.

The Claimant's case is that he should not be removed because removal would frustrate his in-country right of appeal, a right to appeal that should have been granted by the FTT. The Claimant challenges each of the 25 July Decision, the 23 August Notice, and the 6 September Decision. His case, in essence, is that he has made a human rights claim, which was not certified as clearly unfounded in time, and thus he has an in-country right of appeal against the 23 August Notice, under s.92(4)(a) of the 2002 Act. He had "made" that human rights" claim in his screening interview in March 2011 and in any event prior to the 23 August Notice. Further, the FTT Decision was wrong because, first, it was an appeal against a relevant immigration decision, namely the 23 August Notice, and it was an appeal which could be exercised "in-country", for the reasons above. Further, if and in so far as it is now said by the Secretary of State that that appeal was filed out of time under rule 7 of the 2005 Rules, then time should have been, and could still be, extended. Further still, the Claimant contends that, in any event, the FTT had or has "constitutive" jurisdiction to consider his appeal regardless of the bars provided by the exclusion of an in-country right of appeal and/or the time limit for lodging notice of appeal. The FTT should not have declined jurisdiction to entertain his appeal, and thus the appeal is pending. Accordingly, the decision to remove him, based on having no in-country right of appeal, is unlawful and, he cannot be removed, pending the hearing of that appeal. In addition, the Claimant claims that removal would be in breach of Article 8 ECHR as he "has established family and private life in the United Kingdom"; on this basis he appears to be contending that the 6 September Decision is unlawful.

On these grounds, the Claimant seeks orders quashing the decision to remove him and quashing the FTT Decision and a declaration that the FTT had, and has, jurisdiction to entertain his appeal against the 23 August Notice on human rights grounds.

The Secretary of State responds as follows. First, the FTT had no jurisdiction, because the Notice of Appeal sought to lodge an appeal against a decision which was not appealable, namely the 25 July Decision. In that notice, the Claimant did not seek to appeal against the 23 August Notice (which was an appealable decision). Thus, there was no appeal commenced by the Claimant's notice, and thus no valid appeal at all. The FTT was right to state that there was no relevant immigration decision and right to reject the appeal on that basis. This is a complete answer to the Claimant's claim. Secondly, even if the Claimant did appeal against the 23 August Notice, he had no "in-country" right of appeal because his claim had been certified as regards asylum and was not required to be certified as to human rights, because the Claimant had not "made a human rights claim" prior to the 23 August Notice. Mr Blundell concentrated on this point, once Mr Khan had conceded that the human rights claim made in the 2 September letter had not been made in sufficient time. Thirdly, in any event, the Claimant's appeal to the FTT was out of time and there was no application for an extension of time, and no special circumstances justifying extension existed or have been claimed. Fourthly, the Claimant is not assisted by the reference to the concept of "constitutive jurisdiction"; as regards the absence of an in-country right of appeal, it was open to the FTT to take the point itself, which it did in the FTT Decision. As regards the time bar objection, it remains open to the Secretary of State to raise this issue now. Fifthly, if and in so far as the Claimant is maintaining a challenge to the substance of the certification of his Article 8 claim as unfounded, there is no evidence at all to demonstrate that the Secretary of State's consideration of the Article 8 claim in the 6 September Decision was flawed.

Thus, the issues that fall for determination are as follows

The question is whether the Claimant's appeal to the FTT lodged on 6 September 2011, was an appeal against the 23 August Notice (an appealable “immigration decision”), or merely an appeal against the safe third country certificate in the 25 July Decision (not an appealable “immigration decision”).

The Secretary of State relies upon the terms of, and facts surrounding, the Notice of Appeal itself. The Notice of Appeal refers in terms only to the 25 July Decision, and further states that there is "no notice of decision" and that "no proper notice" has been given. Moreover, only the 25 July Decision was attached to the Notice of Appeal. There is no express reference to the 23 August Notice. Further, in the detailed grounds, the Secretary of State relies upon the fact that, in the Notice of Appeal, reference is made to the “COHID Reference” as evidence that it was only the 25 July Decision which was being appealed. Finally, the Secretary of State points to the fact that IJ Kaler held that there was no relevant appealable decision.

I do not accept these submissions and am satisfied that the Claimant's appeal lodged by Notice of Appeal on 6 September 2011 did include an appeal against the 23 August Notice, and as such was an appeal against an "immigration decision" falling within s.82(2)(a).

It was, at the very least, intended that the 25 July Decision should also enclose a relevant appealable decision. The 25 July Decision expressly stated that a "notice of decision and appeal forms" were attached to the Decision. Moreover the 23 August Notice itself refers to the attached safe country certificate and explains that the right of appeal against the refusal of leave decision was circumscribed by the certificate. Thus the intention appears to have been that the two documents were to be attached to each other. However, there is no evidence that any notice of decision was in fact attached to the 25 July Decision at the time, and the evidence suggests that it was not in fact so attached.

Significantly, the Notice of Appeal itself, identifies, at Section 2, three distinct reference numbers. Most particularly, it includes the "COHID Reference" as being "16778920". On the materials before me, the only document which bears that COHID reference is the 23 August Notice. Contrary to the Secretary of State's case made in the detailed grounds (although not repeated in oral submission), the 25 July Decision does not carry that COHID reference number, but bears only the different "Home Office Reference No". In my judgment, the specific inclusion of the COHID reference in that part of the Notice of Appeal amounts to a reference to the 23 August Notice and is sufficient for the Notice of Appeal to constitute an appeal against that Notice.

Moreover, the FTT itself recognised that the Claimant's appeal included an appeal against the 23 August Notice. This is expressly stated in paragraph 1 of IJ Kaler's reasons. The "decision" referred to in paragraph 2 of his reasons is the decision to refuse leave to enter the UK; and the conclusion, in paragraph 3, that there is no "in-country right of appeal" is consistent only with the appeal being an appeal against the refusal of leave to enter. It is also the case that, by the time of the FTT Decision, the FTT had been provided with a copy of the 23 August Notice.

Other aspects of the FTT Decision were the subject of argument by both parties. Some aspects might suggest that the basis of the FTT Decision was that there was no "immigration decision" at all (rather than there being a decision, but one which could not be appealed against "in-country"). The formal notice of 13 September 2011 refers to no "exercisable right of appeal"; that is ambiguous; it could mean that there was no relevant immigration decision or that there was no "in-country" right of appeal (Macdonald, supra, §18-27 appears to suggest it includes references to the latter). Both that notice and IJ Kaler's reasons refer in their headings to "no relevant decision". Further, when read together, paragraphs 5 to 7 of IJ Kaler's reasons might appear to amount to a finding that there is no "immigration decision" at all, within the meaning of s.82(2) of the 2002 Act.

However these paragraphs of the FTT Decision are unclear in a number of respects. First, they do not sit easily with the reasoning and conclusion of paragraphs 1 to 3 of the reasons, which address "in-country" rights of appeal. Paragraph 5 refers to s.92, but fails to indicate that that section is concerned specifically with in-country rights of appeal. Secondly, and following on from this, since the "decision" referred to in paragraphs 1 to 3 of the reasons is clearly a reference to the 23 August Notice, then assuming that the "decision" referred to in paragraph 6 is intended to refer to that same decision, IJ Kaler's conclusion that that decision was not a relevant "immigration decision" at all cannot be correct.

Thirdly, the reference to s.88(2)(d) of the 2002 Act in paragraph 6 is not easy to understand. In my judgment, given the references to s.82 in both paragraphs 5 and 7, I agree with Mr Blundell that the reference to s.88(2) is an error. I do not accept Mr. Khan's contrary submission that, in paragraph 6, IJ Kaler intended to refer to s.88(2)(d). Section s.88(2)(d) is concerned with a particular type of immigration decision taken on particular grounds (seeking to enter for a purpose other than one for which entry is permitted in accordance with the Immigration Rules). The purpose of s.88(2)(d) is to define an immigration decision for which there is no right of appeal, rather than one for which there is a right of appeal. The decision or decisions in this case were not concerned with the particular grounds to which s.88(2)(d) relates. Moreover, the natural reading of paragraph 6 is that it is referring to a class of decision for which there is a right of appeal and then saying that the present case does not fall within that class; rather than that the present case falls within a class of decision for which there is no right of appeal. Given the reference to s.82 in both paragraphs 5 and 7, I consider that, in paragraph 6, IJ Kaler was intending also to refer to s.82(2) (the reference to sub-section (d) is more difficult to understand).

Fourthly, Mr Khan is critical of the fact that in his reasons, IJ Kaler fails to refer to s.92(4) and the in-country right of appeal where there is a human rights claim, even though the judge refers both to the fact that in his grounds the Claimant has relied upon human rights and to the limitation upon in-country appeals in s.92. In my judgment, this does not assist the Claimant's case; on Issue 1, I am with the Claimant in any event; and on Issue 2 (below), it does not assist in determining whether a human rights claim had been made before the 23 August Notice.

In my judgment, the FTT Decision is to be interpreted as a decision that the Claimant had no "in-country right of appeal", and as such supports the case that the Claimant did in fact appeal against the 23 August Notice (and not just the 25 July Decision). In so far as the FTT Decision is to be interpreted, rather, as a decision that there was no immigration decision at all, then I conclude that such a conclusion was incorrect because (a) IJ Kaler clearly was considering the 23 August Notice and (b), more significantly, I am satisfied that the Claimant did in fact appeal, in substance, against the 23 August Notice.

As explained in paragraph 17 above, in order to establish that he had an in-country right of appeal against the 23 August Notice, the Claimant must show that he had made a "human rights claim" prior to the date of that Notice.

The question here is whether what the Claimant asserted, in his asylum interviews and witness statement, constitutes a "human rights claim" as that term is defined in s.113 of the 2002 Act (and para. 1(1) of Sch. 3 to the 2004 Act). Did the Claimant assert a claim that "to remove him from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 ... as being incompatible with his Convention rights"?

I make some preliminary observations. First, the Claimant's argument here was made for the first time in his skeleton for this final hearing. It formed no part of the Claimant's original, or amended, grounds for judicial review and was not considered at the permission stage. The fact that the argument was not taken until the skeleton is consistent with the fact that it was not mentioned in the 2 September letter. At that point, neither the Claimant nor his legal advisers appeared to consider that a human rights claim had been made before 23 August. Nevertheless the Secretary of State ultimately took no formal objection on this basis and I consider the argument on its merits.

Secondly, whether a person has advanced a claim falling within this definition is a question of substance, and not form. It is not necessary for the claimant to refer expressly to the provisions of the ECHR or the HRA nor to advance his claim in formal legal terms. In considering whether such a claim has been made, the Court can and should take account of all relevant particular circumstances, including, for example, whether or not the claimant was legally represented at the relevant time, and including everything which was said by or on behalf of the Claimant.

Thirdly, as to what constitutes a "human rights claim" within the statutory definition, in my judgment, the following elements must be present on the facts: (a) a claim not to be removed from the UK; (b) an assertion of facts that could constitute an existing or prospective private and/or family life, the interference with which Article 8 ECHR protects; (c) an assertion that removal will interfere with that private and/or family life (i.e. that the, or a, basis upon which the claimant wishes to remain in the UK is the desire to maintain or build a private and/or family life). It is also arguable that there should also be a further element: namely, that, given the requirement of a claim that removal would be “unlawful”, there should be an assertion that the interference is in some way “wrongful” or an interference with an “entitlement”, even if this need not be an express reference to a breach of rights under the HRA. However, on the facts of the present case, I do not need to decide this issue.

The Claimant makes three principal points on Issue 2. First, the statements in his screening asylum interview on 30 March 2011 that "I wanted to be with my family" and "I wanted to come to UK to be with my family" constituted the making of a human rights claim based on interference with his right to a family life under Article 8 ECHR. Secondly, as a result of her own policy document entitled IDI Considering Human Rights Claims, the Secretary of State was herself under a duty to consider whether the matters raised by the Claimant's asylum application also gave rise to a human rights claim. Thirdly, by producing the 6 September Decision, addressing the Claimant's human rights claim, the Secretary of State accepted that the factual basis of the 2 September letter required consideration under Article 8 ECHR, and, since this factual basis was no different from the facts asserted in the earlier asylum interview, those facts were themselves sufficient to warrant consideration as an Article 8 claim.

As regards the first point - whether, on the facts, the Claimant did make a "human rights claim" in March and/or June 2011 - in the 2 September letter, the Claimant's representatives put forward a "human rights claim" on two bases: interference with family life, based on family life with his mother, and half sisters and brother living in the UK; and interference with private life based on the state of his own mental health. It is clear that this latter basis was never raised before 2 September 2011. So the question is whether, before 23 August 2011, the Claimant had raised an Article 8 claim on the former basis - interference with family life, with his mother, half sisters and brother.

The evidence positively relied upon by the Claimant is two answers to the same or largely similar effect. In response to the question why he had not claimed asylum in other countries, the Claimant answered that he wanted to be with his family (see paragraph 33 above).

I take into account the fact that at this point the Claimant was not legally represented and had only just arrived in the UK. Nevertheless, in my judgment, these two answers, both of themselves and in the context of the entirety of the interview, do not amount to an assertion that removal from the UK would interfere with his existing (or indeed his future) family life in the UK. The Claimant’s first, and immediate, response to the question why he had not claimed asylum in other countries was that he "wanted to be as far away as possible". The entirety of the rest of the interview was concerned with explaining that he did not wish to be removed because of his fear of persecution upon return to Iran. In that interview, he described who comprised his family in the UK, and pointed out that, at that point, he had not actually seen his family for a considerable time, and further that he would not be able to live with his siblings in the UK. What is revealed by this interview is that the Claimant had not seen his family members for some considerable time and he was not intending to go to live with any of them. Thus, there was no assertion in that interview that he was, at that time, enjoying a family life (within the meaning of Article 8 ECHR) with those UK family members, nor even that, in the immediate future, he was likely to establish one by living with them. In any event, there were no facts asserted which indicated the present or future existence of elements of dependency beyond normal emotional ties with an adult parent or with siblings. Thus element (b) of a "human rights claim", identified above, is not established.

Moreover, these statements are given as a reason for not claiming asylum in other countries. They do not amount to a statement that being with his family is a basis of his wanting to remain in the UK or not wanting to be removed. Thus, these statements do not satisfy element (c) of a "human rights claim" identified above.

The conclusion that no human rights claim was made in the screening interview is in turn confirmed by the content of the Claimant's own witness statement, made some months later in June and, by that time, with the benefit of legal advice. First, that statement went into very great detail about the reasons for his fear of persecution in Iran. By contrast, the Claimant addressed his family very briefly towards the end of the statement. Secondly, on this occasion, when asked why he did not claim asylum in any other country, the Claimant did not mention his family at all and gave an entirely different reason (see paragraph 34 above). Thirdly, after describing again, his siblings and mother living in the UK, he stated that not only was he not living with any of them, but that he was not talking to his mother at all, and that he had only seen his siblings once or twice since arriving in the UK. Thus, at that time, he had not had, and he was not going to establish, any family life with his siblings or his mother. Nothing in this statement amounts to an assertion of an existing or prospective family life for Article 8 purposes; nor amounts to or supports an assertion that removing him from the UK would interfere with any family life. The Claimant does not assert that his family life is the reason why he does not wish to be removed. Neither element (b) or (c) is present.

It is significant that in this witness statement, representing as it does the most detailed and careful exposition of the Claimant's claim and made with the benefit of legal advice, there is no assertion of an interference with family life, capable of falling within Article 8 ECHR.

In his second interview on the next day, in the presence of his legal representatives, the Claimant reiterated the very limited contact he was having with his family, and added that he was living in NASS accommodation. Subject to one point, nothing in this interview raises any suggestion of a claim to stay on the basis of a right to family life under Article 8 ECHR. As to his response to question 169, the Claimant did state, in response to the question whether there are other reasons (other than those already indicated) why he wished to remain in the UK, "I would like to be with my family". Whilst the Claimant himself has not relied upon this answer as constituting the assertion of a human rights claim, nevertheless I have considered the possibility that it might do so.

In my judgment, this answer is an assertion that "being with his family" is a reason why the Claimant did not wish to be removed from the United Kingdom, and, to that extent, element (c) identified above of "human rights claim" is present. However, it is not sufficient to constitute an assertion of facts capable of constituting an assertion of family life under Article 8. Element (b) identified above is not present. In this interview, (and as previously), the Claimant does not assert any facts which amount or could amount to an existing or future "family life" within the meaning of Article 8 ECHR. Indeed all the other evidence, presented at that interview, including the witness statement, on its face, demonstrates that the Claimant had no existing family life, and no prospective family life, with either his siblings or his mother. At no point up to this stage, had the Claimant asserted that he had an existing family life, either with his mother (with whom he was not speaking) nor with his siblings (with whom he could not live and who he had seen only sporadically). Moreover, this further single answer has to be considered in the context of being made at a stage when the Claimant did have legal representation, and had submitted a detailed witness statement drafted by that legal representative. If the Claimant was truly making a "human rights claim" at that point in time, it is to be expected that such a claim would have been put forward as such, clearly and on a consistent factual basis.

Set in the whole context, both of the rest of that interview, and the earlier interview and witness statement, I conclude that this single answer did not amount to a claim by the Claimant that he should not be removed from the UK because to do so would interfere with his family life, and thus did not amount to the making of a human rights claim.

First, the Claimant relied upon the following passage from the UKBA's own internal policy document, IDI Considering Human Rights Claims:

“It has been UK Border Agency's practice to treat asylum claims as implicit human rights claims, but the incorporation of Humanitarian Protection into the Immigration Rules formalises this practice. Where an asylum application had been made, decision makers should consider:

1.

whether the applicant qualifies for asylum under paragraph 334 of the Immigration Rules;

2.

if not, whether the applicant qualifies for Humanitarian Protection under paragraph 339C of the Immigration Rules ...

3.

if not, whether the applicant qualifies for Discretionary Leave on other ECHR grounds, including article 3 grounds that fall outside the Immigration Rules on Humanitarian Protection ...”

On the basis of this policy instruction, the Claimant submits that the Secretary of State was under an obligation to consider all the facts of this case, along with the explicit claim for asylum and to consider whether he had an Article 8 claim. In my judgment, at its highest, this passage in the IDI required the UKBA to consider the "human rights" aspects of an asylum claim, if there was some indication that there is a possibility of such a claim arising. However on the facts of the present case, there was nothing within the screening interviews and the witness statement which was sufficient to put UKBA case officers on notice of a distinct claim under Article 8 ECHR. Given that at that point the Claimant was seeking to enter the UK after seven years absence, there could be no suggestion that he had any basis to make a human rights claim based on family life before entering the country. Moreover, even if there was a duty upon them to consider the possibility of such a claim, that does not mean that on the facts the Claimant had "made a human rights claim" within the meaning of s.113 of the 2002 Act.

Secondly, as to the Claimant's reliance upon the terms of the 2 September letter and the Secretary of State's response to that claim, the facts asserted in the 2 September letter were not the same facts as presented in the earlier interviews. The reference to mental health issues was new. Further, the 2 September letter stated that the Claimant "has lived with his family" and for that reason removal would infringe Article 8. However at no stage previously had the Claimant asserted that he wanted to stay because he had lived with, or was living with, his family; rather he had asserted merely that he wanted, prospectively, to be with his family, and that, certainly since his arrival, he had not been living with any of his family. Moreover, if the claim made in the 2 September letter was no more than had previously been asserted, it is highly likely that there would have been a reference to an earlier claim made in the interviews. In my judgment, the Claimant's solicitors did not write on 2 September in the belief that an Article 8 claim had already been made.

In the two interviews, the Claimant made three short references to wanting to be with his family. These limited statements were made in the context of a claim for asylum, and the entire thrust of his evidence went to the issue of whether he had a genuine fear of persecution if he were returned to Iran. The Claimant's claim not to be removed was based on a fear of persecution, and not because of disruption to his existing or prospective family life. The statement in the first interview did not constitute a human rights claim, because neither element (b) nor element (c) of a “human rights claim” was present. The statement in the second interview did not constitute a human rights claim, because element (b) was not present.

For these reasons, I conclude that at no time prior to the 2 September letter had the Claimant made a "human rights claim" based on Article 8 ECHR within the meaning of that term in s.113 of the 2002 Act (nor in paragraph 1(1) of Sch. 3 to the 2004 Act, to which para. 5(4) of Sch. 3 applied). Accordingly, there was no relevant "human rights" claim giving rise to an in-country right of appeal under s.92(4)(a) of the 2002 Act in respect of the 23 August Notice. The fact that a human rights claim, subsequently made, was not certified until 6 September 2011 is not relevant to this Issue.

Thus, the FTT Decision that the Claimant did not have an in-country right of appeal against the 23 August Notice was correct.

Had I concluded, contrary to the foregoing, that the Claimant did otherwise have an in-country right of appeal, I would not have acceded to the Secretary of State's reliance upon the time limit in Rule 7 of the 2005 Rules. At the time, the FTT did not consider the question of the time limit. Under Rule 10, the Claimant should have been given an opportunity to seek an extension of time. I accept that the Claimant did not seek such an extension and has not shown special circumstances. However I would have given the Claimant the opportunity to demonstrate to the FTT special circumstances as to why the appeal had been filed out of time. Whilst the FTT might not have granted such an extension, I would not have been prepared to say now that the Claimant should be deprived of the opportunity to seek one. At the time, the Claimant did not believe that the appeal was out of time, and so made no application for an extension. Nevertheless the FTT had a duty, under Rule 10(2), to go back to the Claimant and invite an application for an extension.

The Claimant further relies upon the concept of the FTT's "constitutive jurisdiction" as set out by Sedley LJ in Anwar: see paragraphs 28 and 29 above.

First, the Claimant suggests that, even if, as I have concluded, the Claimant did not have an "in-country" right of appeal (because no human rights claim hade been made), this bar to his appeal did not, in all circumstances, prevent the FTT from considering the appeal which he lodged, and that the FTT had "constitutive jurisdiction" to consider his appeal against the 23 August Notice. Unless the Secretary of State expressly raised the objection that there was no "in-country" right of appeal, the FTT could, and should, have proceeded to exercise jurisdiction over the appeal.

I do not accept this argument for two reasons. First, as Longmore LJ pointed out in Nirula, it remained open to the FTT itself to raise the issue of whether there was an "in-country" right of appeal, and on the facts the FTT did itself raise the issue and ruled that there was no "in-country" right of appeal: see paragraphs 1 to 3 of IJ Kaler's reasons. Secondly, in the 23 August Notice itself, the Secretary of State expressly referred to the fact that any appeal against that decision had to be brought after the Claimant had left the UK. As in Nirula, this statement itself was sufficient to constitute the raising, by the Secretary of State, of the objection based on absence of in-country right of appeal. The Claimant sought to distinguish Nirula on the ground that in the 23 August Notice, the Secretary of State did not state that there was no in-country right of appeal in relation to a human rights claim. However, on the hypothesis upon which this issue arises, the Claimant had not made any such human rights claim.

Secondly, the Claimant also submitted that any time bar point relied upon by the Secretary of State could also be defeated by the FTT exercising "constitutive jurisdiction" and that it was now too late for the Secretary of State to rely upon the time limit. I do not accept this argument. If there had been an in-country right of appeal, and the matter had been referred back to the FTT (as would have been the case (paragraph 87 above)), it would have remained open to the Secretary of State to seek to resist any extension of time sought by the Claimant.

The Claimant appears to challenge both the certification as unfounded, in the 6 September Decision, of the Article 8 claim; and the removal itself directly on the grounds that removal will substantively infringe Article 8. However the Claimant's case here was not advanced in any great detail.

In my judgment, there is no basis for the Claimant to challenge the substance of the 6 September Decision certifying his Article 8 claim as clearly unfounded. In so far as the Article 8 claim was based on his relationship with his mother and his half sisters and half brother in the UK, at the time of making the claim, there is no evidence to establish "further elements of dependency involving more than the normal emotional ties" as required by the approach laid down in Kugathas. The Claimant had no existing family life with either his mother or his siblings, and there was nothing to indicate that such a life would develop (see paragraph 37 above). Moreover, the fact that he had, seven years previously, lived with one or more of his siblings does not establish the existence of such a family life. As regards the mental health issues relied upon, the Claimant made an unsubstantiated assertion that removal to Slovenia would be detrimental to his health. This point was considered in paragraphs 9 to 11 of the 6 September Decision; and there is no material to show that the authorities in Slovenia might not be able to provide the same standard of care as is provided in the UK. Applying the approach in ZT (Kosovo), and Yogathas, I am satisfied that these allegations must fail. Furthermore, if and in so far as the Article 8 challenge to removal could be made on the basis of further material submitted since 6 September 2011, and in particular in the witness statements from his mother and siblings (see paragraph 6 above), this material does not add to the Claimant’s claim under Article 8.

For the reasons given in paragraphs 85 and 86 above, the Claimant had not made a human rights claim prior to 23 August 2011 and thus had no in-country right of appeal against the 23 August Notice. For the reasons given in paragraph 93 above, any substantive claim under Article 8 fails. The decision to remove cannot be impugned and the FTT was right to decline to hear the Claimant's appeal. Accordingly, I dismiss the Claimant's application for judicial review.

I propose dealing with any matters consequential upon this judgment which cannot be agreed immediately following the handing down of this judgment, unless any party requests that they be dealt with subsequently. In that event, I will give directions as to the procedure to be followed, including for the service of written submissions. In the meantime I am grateful to both Mr Khan and Mr Blundell for the assistance they have provided to the Court.