FA v Secretary of State for the Home Department

[2] So far as the appropriate legal test applicable to a certification case under the 2004 Act was concerned, it was common ground between the parties it is as expounded by the House of Lords in Z T (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6 . In that case Lord Phillips of Worth Matravers said at paragraph 23:

Facts [3] The petitioner is a citizen of Afghanistan , born on 8 April 1988 . He first arrived in the United Kingdom when aged 13 in late 2001 and claimed asylum. He was granted leave to remain by the respondent for a period of 4 years. For the first 6 months of his stay in the United Kingdom the petitioner was accommodated at an under 16's Asylum Seekers Unit in Kent . Thereafter from mid-2002 he lived with a cousin in Glasgow . He attended an Academy in Glasgow and undertook standard grade examinations there.

[4] By letter dated 21 December 2005 from solicitors acting on behalf of the petitioner, and enclosing the relevant application form, the petitioner applied for Indefinite Leave to Remain in the United Kingdom . Apparently the petitioner received no decision from the Respondent on that application. By that time one of the petitioner's sisters had also come to live in the United Kingdom where she lived lawfully as a spouse. She has two young children.

[5] According to the petitioner, he returned to Afghanistan by lorry in 2008. He remained outwith the United Kingdom for some ten months or so until 7 April 2009 when he was discovered on a train travelling through the Euro tunnel from France . He had travelled by lorry to return to the United Kingdom but en route he encountered the Dutch police. In the Netherlands he was fingerprinted and claimed asylum. It was after that claim had been made that he returned to the United Kingdom .

[8] By letter dated 28 April and 1 May 2009 , solicitors acting on behalf of the petitioner invited the respondent to determine the petitioner's claim to remain in the United Kingdom . Now the essence of the petitioner's claim was that removal would constitute a breach of Article 8 of ECHR. The petitioner was due to be removed to the Netherlands on 6 May 2009 . The petitioner raised Judicial Review proceedings against his removal. First Orders were granted on 5 May 2009 with the effect that the respondent cancelled the petitioner's proposed removal.