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

Factual and Procedural Background

The Plaintiff, an adult male national of a foreign state, arrived in the UK and claimed asylum. He had previously lived in the UK years earlier with family members but had returned to his country of origin before re-entering the UK. The Secretary of State refused the Plaintiff leave to enter the UK and decided to remove him to Slovenia, designated as a safe third country under the Dublin II Regulation. The Plaintiff challenged these decisions, asserting he had an in-country right of appeal against removal that should be exercised before removal to Slovenia. The First Tier Tribunal (FTT) refused to entertain the Plaintiff's appeal for lack of jurisdiction. The Plaintiff subsequently applied for judicial review of the Secretary of State's decisions and the FTT decision. The case centrally concerns the definition and timing of a "human rights claim" that triggers an in-country right of appeal under immigration law.

Legal Issues Presented

1. Whether the Plaintiff's appeal lodged on 6 September 2011 was against an "immigration decision" within the meaning of section 82(2)(a) of the Nationality, Immigration and Asylum Act 2002.
2. Whether the Plaintiff made a "human rights claim" prior to the 23 August 2011 notice refusing leave to enter the UK.
3. Whether the Plaintiff is barred from pursuing an in-country right of appeal due to the time limits under the Asylum and Immigration Tribunal (Procedure) Rules 2005.
4. Whether the FTT had "constitutive jurisdiction" to entertain the Plaintiff's appeal regardless of the absence of an in-country right of appeal or time limits.
5. Whether the certification of the Plaintiff's human rights claim as clearly unfounded and/or the removal would breach Article 8 of the European Convention on Human Rights (ECHR).

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contends he made a valid human rights claim prior to the 23 August Notice, thus conferring an in-country right of appeal under s.92(4)(a) of the 2002 Act.
• The FTT erred in refusing jurisdiction to hear the appeal against the refusal of leave to enter the UK (23 August Notice), which was an appealable immigration decision.
• If the appeal was out of time, the Plaintiff should have been given an opportunity to seek an extension under the procedural rules.
• The FTT had or has "constitutive jurisdiction" to hear the appeal regardless of statutory bars, and thus the appeal remains pending.
• Removal would breach Article 8 ECHR due to the Plaintiff's established family and private life in the UK, rendering the Secretary of State's certification unlawful.
• The Plaintiff seeks quashing of the removal decision, the FTT decision, and a declaration of the FTT's jurisdiction to hear the appeal on human rights grounds.

Secretary of State's Arguments

• The FTT correctly held it had no jurisdiction because the Plaintiff's notice of appeal was against the 25 July Decision, which is not an appealable immigration decision, not the 23 August Notice.
• The Plaintiff did not make a human rights claim prior to the 23 August Notice; thus, no in-country right of appeal arose.
• The appeal was lodged out of time with no application or grounds for extension, and no special circumstances exist to justify extending time.
• The concept of "constitutive jurisdiction" does not assist the Plaintiff; the FTT properly raised jurisdictional bars sua sponte.
• The certification of the human rights claim as clearly unfounded under paragraph 5(4) of Schedule 3 to the 2004 Act was lawful and supported by evidence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered whether the Plaintiff's appeal lodged on 6 September 2011 was against an appealable immigration decision. Although the notice of appeal referred only to the 25 July Decision (a non-appealable safe third country certification), the court found that the inclusion of a COHID reference number corresponding to the 23 August Notice (refusal of leave to enter) and the FTT’s own recognition indicated the appeal was intended against the 23 August Notice. Thus, it was an appeal against an appealable immigration decision under s.82(2)(a) of the 2002 Act.

The court then examined whether the Plaintiff had made a "human rights claim" prior to the 23 August Notice. It defined the elements of such a claim as: (a) a claim not to be removed from the UK; (b) an assertion of facts constituting existing or prospective private and/or family life protected by Article 8 ECHR; and (c) an assertion that removal would interfere with that life. The court analyzed the Plaintiff’s asylum interviews and witness statement and found that brief references to wanting to be with family did not amount to an assertion of existing or prospective family life with dependency beyond normal emotional ties. The Plaintiff had no established or prospective family life with his mother or siblings, and the desire to be with family did not constitute a human rights claim as defined in the statute.

The court further considered the procedural time limits for appeals. Although the Plaintiff’s appeal was out of time and no extension application was made, the court would have allowed the Plaintiff an opportunity to seek an extension, as required by the procedural rules. However, since no in-country right of appeal existed, this issue was moot.

The Plaintiff’s argument that the FTT had “constitutive jurisdiction” to hear the appeal despite statutory bars was rejected. The court held that the FTT properly raised the issue of jurisdiction and that the Secretary of State had effectively raised the objection to in-country appeal rights in the 23 August Notice.

On the substantive Article 8 claim, the court found no evidence of family life meeting the threshold of dependency beyond normal emotional ties. The Plaintiff had no existing family life with family members in the UK and no evidence suggested a prospective family life. The mental health claim was unsubstantiated and there was no indication that Slovenian authorities could not provide adequate care. Accordingly, the certification of the human rights claim as clearly unfounded was lawful, and removal would not breach Article 8.

Holding and Implications

The court DISMISSED the Plaintiff’s application for judicial review.

The court held that the Plaintiff did not make a human rights claim prior to the 23 August Notice, and therefore had no in-country right of appeal against that decision. The FTT was correct to decline jurisdiction to hear the appeal. The certification of the human rights claim as clearly unfounded was lawful, and there was no basis to prevent removal to Slovenia. The decision directly affects the parties by permitting the removal to proceed but does not establish any new legal precedent beyond the application of existing principles.