ZK (Afghanistan) & Anor , R (on the application of) v Secretary of State for the Home Department

Further submissions amount to a fresh claim under Rule 353 of the Immigration Rules only where they contain material not previously considered and, with the earlier material, create a realistic prospect of success. A later attempt to challenge the merits of an old asylum decision does not satisfy that test.

Where an applicant has no remaining immigration entitlement, earlier administrative delay may be relevant to proportionality under article 8 of the European Convention on Human Rights. It must, however, have very substantial effects. The loss of a hypothetical earlier grant of exceptional leave to remain does not by itself affect a later article 8 claim.

The appellants, Afghan nationals, had each exhausted the statutory appeal process following refusals of asylum and subsequent refusals of leave to remain. They later made representations said to be fresh claims under Rule 353 of the Immigration Rules. They relied principally on conditions in Afghanistan, private-life claims, delay in deciding their original claims and, for ZK, an alleged failure to apply an earlier policy on exceptional leave to remain.

The Secretary of State declined to treat the representations as fresh claims. Forbes J refused the appellants’ renewed applications for permission to seek judicial review in the Administrative Court: [2006] EWHC 1883 (Admin). The appeals concerned whether the refusals of fresh-claim status were irrational, including whether historic delay or the alleged policy error could create a viable article 8 or abuse-of-power claim.

1. Appeals dismissed. Pill LJ, with whom Rix and Longmore LJJ agreed, held that the Secretary of State had dealt rationally and sufficiently with both sets of representations. Neither appellant had shown that the 2005 material amounted to a fresh claim under Rule 353 of the Immigration Rules.
2. Rule 353 requires material not previously considered which, taken with the earlier material, creates a realistic prospect of success. The applicable formulation was the “acid test” stated in R v Secretary of State for the Home Department, ex parte Onibiyo, 1996 2 All ER 901. The representations were in substance attempts to reopen decisions made years earlier, rather than new claims with a realistic prospect of success.
3. The Court applied the binding delay principles summarised in HB (Ethiopia), [2006] EWCA Civ 1713, including Strbać, [2005] EWCA Civ 848. For a person with no present immigration entitlement, delay may be relevant under article 8(2) of the European Convention on Human Rights, but only if it has very substantial effects. Missing the benefit of a hypothetical earlier asylum determination that would have resulted in exceptional leave to remain does not, by itself, affect a subsequent article 8 claim. The appellants advanced no independent viable article 8 claim.
4. The historic delay was not challenged at the appropriate time. The Court agreed that the applications were, in substance, stale attempts to quash the original asylum decisions.
5. Obiter, a claim based on the later discovery of an alleged legitimate expectation would require coherent evidence and an adequate explanation for the delay in seeking relief. The circumstances were materially unlike Secretary for the Home Department v R (Rashid), [2005] EWCA Civ 744. A failure to grant discretionary leave and the delays here fell far short of the persistent administrative failures and conspicuous unfairness found there to constitute an abuse of power.

• Court of Appeal (Civil Division): dismissed both appeals from the refusal of permission to apply for judicial review.
• Administrative Court: Forbes J refused the renewed applications for permission to apply for judicial review: [2006] EWHC 1883 (Admin).
• Administrative Court, on paper: Sullivan J and Wilkie J respectively refused the initial permission applications.