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

Under paragraph 353 of the Immigration Rules, further submissions amount to a fresh claim only where they contain material not previously considered and, taken with the earlier material, create a realistic prospect of success before an adjudicator. The Secretary of State must ask that question rather than decide whether the claim would itself succeed. In asylum cases the assessment must involve anxious scrutiny of both the facts and the legal conclusion. A relationship formed while both parties have precarious immigration status will generally provide a weak basis for an Article 8 challenge to removal. A policy concerning spouses does not automatically extend to unmarried partners, although any residual discretion must still be considered rationally.

The claimant, a Sierra Leonean national, challenged successive decisions refusing to treat further asylum and human-rights representations as a fresh claim. Her original asylum and Article 2 and 3 claims had been dismissed by an adjudicator, and permission to appeal had been refused. She later relied on changed country evidence, her relationship with Henry Alpha, the success of his separate Article 8 appeal, and Home Office policy concerning spouses of persons granted protection or leave.

The court considered whether the Secretary of State had applied the correct paragraph 353 test, whether the fresh material created a realistic prospect of success under Articles 3 or 8, and whether the policy or residual discretion required a different result.

1. The claim was dismissed. The Secretary of State’s later decision letters had applied the correct question under paragraph 353 of the Immigration Rules. The issue was whether an adjudicator, applying anxious scrutiny, would have a realistic prospect of allowing the claim, not whether the Secretary of State considered it a good claim.
2. The fresh country evidence did not meet that threshold. It was generalised evidence about the difficulties faced by women and single women in Sierra Leone. It did not materially undermine the earlier adjudicator’s findings, which had been properly open to him and had survived the refusal of permission to appeal. There was no realistic prospect of a different conclusion on the Article 3 issue.
3. The claimant’s Article 8 case also failed. When the relationship with Mr Alpha began, both parties’ immigration positions were precarious and known to be so. The claimant could not simply rely on the success of Mr Alpha’s separate appeal. There was no finding that his return to Sierra Leone would breach Article 3, and the couple could return together or the claimant could apply to return to the United Kingdom.
4. The API policy provisions concerning a spouse did not apply because the claimant was not married. The Secretary of State had nevertheless considered residual discretion. No compelling compassionate circumstances made its refusal irrational, and the policy’s underlying rationale could not transform the claimant into a quasi-spouse for Article 8 purposes.
5. Fatmata Sumah (FS) v Secretary of State for the Home Department [2002] UKIAT 05588 was fact-specific and did not establish a general Article 3 risk for single women returning to Sierra Leone. The court therefore found no basis for judicial review. The Secretary of State was awarded costs on the standard basis, and permission to appeal was refused.

• Adjudicator: dismissed the claimant’s original asylum and Article 2 and 3 appeal; the determination was promulgated on 22 October 2004.
• Immigration Appeal Tribunal: refused permission to appeal on 7 March 2005.
• High Court (Administrative Court): dismissed the judicial review claim, ordered costs on the standard basis and refused permission to appeal.