BS (Kosovo) v Secretary of State for the Home Department

When further representations are assessed as a possible fresh claim, the Secretary of State must address both whether the relevant conditions are met and whether an immigration judge could realistically find for the applicant. A failure to ask the second question does not require judicial review relief if the outcome would inevitably have been the same.

Application of an immigration policy is ordinarily reviewed on Wednesbury grounds. The separate question whether interference with article 8 rights is proportionate requires the appropriate proportionality approach. Exceptional personal circumstances must be considered, but an authority on materially different facts need not govern. A procedural failure concerning an unaccompanied minor’s asylum application does not make the decision unlawful where it was considered and no prejudice was rationally found.

The applicant, a Kosovo national who had entered the United Kingdom as a minor and claimed asylum, challenged refusal of further leave to remain. His article 8 claim had previously succeeded because he lived with his younger brother, but he later sought to remain as the unmarried partner of a settled person undergoing IVF treatment.

Underhill J granted permission for judicial review but dismissed the substantive application in [2007] EWHC 1704 (Admin), and refused permission to appeal. The renewed application raised five grounds concerning a fresh claim, the precariousness of the applicant’s status, policy DP3/96, removal and entry clearance, and delay in deciding an unaccompanied minor’s asylum claim. The central issue was whether any arguable legal error justified appellate permission.

Disposition. The renewed application for permission to appeal was refused. The appeal had no realistic prospect of success and disclosed no other compelling reason for permission.

1. Fresh claim. The Court accepted the two-stage approach identified in WM (DRC) v SSHD [2006] EWCA Civ 1495: the Secretary of State must decide whether the fresh-claim conditions are met and whether an immigration judge would have a realistic prospect of finding for the applicant. The August letter was a reconsideration of the earlier decision, and the only genuinely new matter was the IVF issue. Although the Secretary of State had not expressly addressed the second question, his reasons showed that he would inevitably have reached the same conclusion. Judicial review relief was therefore unnecessary for any immaterial error of law.
2. Precarious status. The applicant’s continuing presence was precarious because it depended on a favourable decision by the Secretary of State, which could not be guaranteed. His claimed expectation of equal treatment with his brother did not create an arguable basis for a different conclusion, since he knew by November 2001 that they were not being treated alike.
3. Policy and article 8. Application of policy DP3/96 was subject to the ordinary Wednesbury standard. The overlapping article 8 issue required proportionality review. The Court found no arguable failure to apply the appropriate standard. A possible short-term delay in removal to permit attendance at an imminent IVF appointment did not contradict the longer-term conclusion that accompanying the applicant to Kosovo was not unreasonable.
4. Removal and entry clearance. The Court upheld the conclusion that the decision-maker had considered the relevant exceptional circumstances and had given adequate reasons why this case differed from Shala [2000] EWCA Civ 233. The reliance on the strict approach discussed in R (Mahmood) v SSHD [2001] 1 WLR 840 disclosed no arguable legal error.
5. Unaccompanied-minor procedures. Although the applicant relied on AA (Afghanistan) [2007] EWCA Civ 12, the Secretary of State had considered the delay and alleged procedural failure and rationally concluded that no prejudice had been suffered. No arguable error of law was established.

• Court of Appeal (Civil Division): The renewed application for permission to appeal was refused. The Court held that the proposed appeal had no realistic prospect of success and no other compelling reason justified permission. [2007] EWCA Civ 1310
• Queen’s Bench Division, Administrative Court: Underhill J granted permission to apply for judicial review but dismissed the substantive application and refused permission to appeal. [2007] EWHC 1704 (Admin)
• Court of Appeal (Civil Division): Buxton LJ had previously refused permission to appeal on consideration of the papers.