31st Jan 2012
The claimant asylum seeker (R) challenged a decision of the defendant Secretary of State for the Home Department to certify R’s claim under the European Convention on Human Rights 1950 art.8 as unfounded.
R, who was a citizen of Eritrea, had been granted asylum status in Italy. Her children were taken to Italy but a few months later she entered the United Kingdom clandestinely with them and claimed asylum under a different name without disclosing her asylum status in Italy. Removal directions were set for the family to be returned to Italy but cancelled for various reasons. R alleged that she had been raped in Eritrea and Italy, had contracted HIV, and there was a real risk that she would commit suicide if returned to Italy. The secretary of state certified R’s claim under art.8as unfounded and refused to transfer refugee status to the UK. Removal directions were set again but were cancelled as R was unfit to fly. The issues for consideration were whether (i) the claim could be said to be clearly unfounded once the best interests of the children were taken into account given that they had settled in the UK for the last three years and their education would be disrupted if moved to Italy; (ii) the secretary of state was wrong to refuse to transfer refugee status and whether that decision was irrational.
HELD: (1) The “best interests” of the children could involve a wide-ranging enquiry and was not limited to the absence of harm or breach of basic Convention rights and extended to a “whole series of factors”, Neulinger v Switzerland (41615/07)  1 F.L.R. 122 considered . It was unlikely that any one single factor would be determinative, SSHD v MK  UKUT 00475 considered. The arguments that the children’s education would be adversely affected and that they would face the difficulty of readjusting to a country with which they had little former acquaintance had some weight. However, an immigration judge would be bound to hold that the essential interests of the children and R would be preserved and not adversely affected by any move to Italy. There were no significant differences in risk, security and the assurance of fundamental rights between the UK and Italy. The integrity and practical utility of the common European asylum system of which Dublin II formed part, was such that the decision to certify would stand. Even if the effects of removal on R herself were added to the balance, R’s art.8 challenge would not succeed (see paras 57, 66-68 of judgment). (2) Having concluded that the best interests of the children had no prospect on any reasonable view of outweighing a decision to return R to Italy, the only basis on which to argue irrationality was that no specific reference was made to the best interests of the children; it could not otherwise be said to be unlawful, irrational or unreasonable to refuse transfer. However, what mattered was not the form, but the substance of the consideration given. It was plain that the secretary of state had regard to the best interests and welfare of the children since they were bound up in her reasoning. The challenge therefore was bound to fail. (see paras 71-73) (3) A stay was declined.
An asylum seeker’s claim under the European Convention on Human Rights 1950 art.8 was clearly unfounded once the best interests of her children were taken into account and where removal was to Italy. The essential interests of the children, including disruption to their education, would not be adversely affected by any move to Italy.