The couple’s Article 8 claim succeeded, with damages to be assessed by the County Court.
Unlawful detention separation breached the Article 8 family-life rights of a married couple who were held separately in immigration detention, the High Court has ruled.
The case, FNB and another v Secretary of State for the Home Department [2026] EWHC 2374 (Admin), concerned an interfaith couple who had claimed asylum in the UK because they feared persecution in India because of their marriage.
The couple were detained on 11 September 2025 pending removal to India. FNB was held in female accommodation while FNN was held separately in male accommodation. The Home Office initially maintained that it had considered whether they could be housed together and had decided that separate accommodation was proportionate because removal was imminent.
The judicial review challenged the refusal of their asylum claim and the certification of their humanitarian protection and human rights claims as “clearly unfounded”. The couple argued that they had not been given a fair opportunity to address the concerns relied upon by the Home Office and that the certification decision was irrational. They also argued that their separation in detention unlawfully interfered with their Article 8 family life rights.
The court rejected the first two grounds. On procedural fairness, the judge found that the asylum interview gave FNB sufficient opportunity to explain the persecution she feared and the protection available to her. The judge also rejected the argument that the absence of legal representation, by itself, made the process unfair.
On certification, the court held that the “clearly unfounded” test was an objective one: a claim cannot be certified on that basis if there is reasonable doubt about whether it may succeed. However, the judge concluded that the evidence before the original decision-maker established that there were parts of India where the couple could live safely and that the certification decision was therefore correct.
The position was different on the couple’s separation in detention. The Home Office conceded during the hearing that it could not establish a lawful basis for the interference with their family life. Evidence showed that there had been no adult family accommodation anywhere in the immigration removal estate in September 2025.
The judge therefore declared that separating FNB and FNN during detention was an unlawful interference with their Article 8 rights. The court did not assess damages at this hearing. That issue will be transferred to the County Court, which will determine the amount, if any, payable.
The judgment also criticised the Home Office’s handling of the issue. The judge described the failure in the duty of candour as serious, finding that the Home Office had maintained that family accommodation had been considered when, in fact, no such accommodation had existed since 2020. The judge said it was not legitimate to mislead the claimants and the court into believing that such accommodation existed or had been actively considered.
The final result was therefore mixed: the judicial review failed on the asylum decision and its certification, but the claim concerning the couple’s separation succeeded. The damages claim arising from that unlawful separation will now proceed to the County Court.