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

A fresh asylum or human rights claim must rely on material that is significantly different from material previously considered. Evidence available but not advanced earlier cannot ordinarily establish a fresh claim. Where there is no valid international protection claim, an applicant with no right to remain must normally use the entry-clearance process. Article 8 does not ordinarily create a realistic prospect of success in avoiding that process merely because a relationship exists in the United Kingdom. Exceptional circumstances must justify waiving the entry-clearance requirement. The short-term interference involved in returning to make an application, particularly where the relationship would likely satisfy the relevant Immigration Rules, may be proportionate.

The claimant, a Jamaican national, challenged decisions rejecting further asylum, human rights and immigration submissions. His earlier asylum and Article 3 claims had been rejected by an adjudicator but allowed on appeal by the Immigration Appeal Tribunal. After detention for removal, he asserted a relationship with a British partner and relied on paragraph 295D of the Immigration Rules and Article 8. The Secretary of State treated the relationship as genuine and subsisting since 2002 for the purpose of the fresh-claim assessment, but concluded that the claimant should return to Jamaica and apply for entry clearance. The central issue was whether the further submissions created a realistic prospect of success as a fresh claim.

1. The application was dismissed. The Secretary of State’s later decision superseded the earlier decision for practical purposes, and neither decision was unlawful.
2. Under paragraph 353 of the Immigration Rules, further submissions amount to a fresh claim only if they are significantly different from material previously considered and, taken with that material, create a realistic prospect of success notwithstanding their rejection. The requirement includes the principle identified in R v Secretary of State for the Home Department ex parte Onibiyo (28th March 1996): an applicant cannot ordinarily rely on evidence available earlier but not then advanced.
3. The claimant’s relationship claim under paragraph 295D and Article 8 did not provide a realistic prospect of showing exceptional circumstances sufficient to waive the entry-clearance requirement. In the absence of a valid international protection claim, the claimant had no right to remain while making an application that could be made from abroad.
4. Following the approach in R on the application of Ekinci v Secretary of State for the Home Department [2003] EWCA Civ 765, the Secretary of State was entitled to attach substantial importance to maintaining the ordinary immigration procedures. The claimant’s late reliance on the relationship could also be taken into account.
5. If the relationship was genuine and had subsisted for two years, the likely success of an entry-clearance application meant that the interference would be comparatively short. If the relationship was weaker under the Rules, that provided an even less satisfactory basis for avoiding entry clearance. The response was lawful and proportionate.
6. The background material did not establish a fresh international protection claim. The claimant had not identified what was new in that material or relied on it as a basis for protection independent of his relationship.

An anonymity order was made, and the claimant was granted an assessment of costs.

1. Immigration Appeal Tribunal: allowed the Secretary of State’s appeal against the adjudicator’s determination, which had accepted the claimant’s asylum and Article 3 claims. Leave to appeal to the Court of Appeal was refused.
2. High Court (Administrative Court): dismissed the judicial review claim.