Bennet-Gay, R (on the application of) v Secretary of State for the Home Department

In a fresh immigration claim relying on Article 8, the Secretary of State must assess whether the claim has a realistic prospect of success before an immigration judge. The court may quash the decision where material assumptions about family relationships or practical arrangements are untested and the evidence is incomplete in a way that could affect the assessment. The claimant bears responsibility for presenting comprehensive evidence, but the decision-maker must reach a reasonable conclusion on the material available. Article 8 claims in immigration cases are unusual and generally succeed only in exceptional circumstances. The birth of children in the United Kingdom does not, without more, prevent immigration control from being enforced. Where the evidence could realistically support success after an oral hearing and cross-examination, refusal of a fresh claim may be unlawful.

The claimant, a Jamaican citizen, sought judicial review of decisions concerning her removal and an Article 8 claim. Her earlier asylum claim had been rejected on credibility grounds. A later application based on marriage did not raise Article 8 and was rejected under the Immigration Rules. She subsequently advanced an Article 8 claim based principally on her relationship with two children, neither of whom lived with her.

The Secretary of State rejected the claim as not amounting to a fresh claim. The claimant argued that she had a right of appeal under section 82 and that the Article 8 assessment was unlawful. The central issue was whether there was a realistic prospect that the claim could succeed before an immigration judge.

1. Article 8 claim. The claimant’s own Article 8 case was weak. The material issue concerned the relationship between the claimant and her children. Immigration control would be seriously weakened if the birth of children in the United Kingdom automatically enabled a person to avoid removal.
2. Fresh claim test. The Article 8 claim fell to be considered under the fresh claim provisions. The relevant question was whether it had a real or realistic prospect of succeeding before an immigration judge. The Secretary of State had treated the claim as having no reasonable prospect of success.
3. Reasonableness of the decision. The decision-maker was not responsible for the claimant’s failure to provide complete evidence. The material should have addressed the children’s possible removal to Jamaica, the claimant’s ability to care for them there, her ability to visit them in the United Kingdom, and the position of the fathers and other carers. The basis and evidence for the residence order were also unknown.
4. The Secretary of State had made untested assumptions about the claimant’s ability to visit the United Kingdom or take the children with her. In a complicated case, those assumptions could affect the outcome. There was a realistic possibility that an immigration judge, with fuller evidence and the opportunity to question and cross-examine the claimant, might reach a different conclusion.
5. The decision refusing the fresh claim was therefore quashed. The application was granted. Any subsequent appeal before an immigration judge might fail, but success could not be said to be impossible on the material before the court.

This was a first-instance judicial review. The application was granted and the Secretary of State’s fresh-claim decision was quashed.