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

In judicial review, the court reviews the lawfulness of the particular decision under challenge. Where the decision-maker has reconsidered the matter and issued a fresh decision, that decision must itself be challenged. The earlier decision cannot usefully remain the focus of the claim if it has been superseded.

A claimant cannot ordinarily rely at the hearing on a materially different case which was not put to the decision-maker. The appropriate course is to make further representations so that the Secretary of State can address the new evidence or argument and issue a further decision. In assessing Article 8 consequences of requiring return to obtain entry clearance, the risk factors identified in IK require careful evaluation on the particular facts.

The claimant, a Turkish citizen, sought judicial review of decisions refusing leave to remain based on his marriage and declining to treat further representations as a fresh asylum claim. Permission was granted on a limited basis concerning whether requiring him to return to Turkey to apply for entry clearance would be disproportionate under Article 8 because of his wife's refugee status and her family's alleged Kurdish political associations.

The Secretary of State subsequently reconsidered the matter and issued a decision letter dated 5 April 2007. The claimant did not amend the claim or bring a separate challenge to that decision. At the hearing he advanced a further argument that obtaining a passport in Turkey would reveal his marriage and expose him to risk. The central issues were whether the earlier decisions remained justiciable and whether the later argument could be relied upon without first being put to the Secretary of State.

1. The application was refused. The decision letters challenged in the original claim had been reconsidered and superseded by the Secretary of State's letter of 5 April 2007. A judicial review is a review of a particular decision. Unless the fresh decision is challenged by amendment or a further claim, it stands as a lawful decision. The challenge to the earlier decisions was therefore academic.
2. The claimant's new case was materially different from the case advanced to the Secretary of State. Earlier representations asserted that his wife could not accompany him to Turkey, but did not contend that he would face risk because of his relationship with her. The argument that applying for a passport would disclose the marriage had not been raised before the decision-maker and there was no evidence about the relevant Turkish procedures.
3. The decisions were lawful on the information and grounds presented to the Secretary of State. It was procedurally unfair to raise a new target at the hearing and complain that it had not been addressed. Any properly evidenced case concerning the passport application, disclosure of the marriage and resulting risk could be made by further representations.
4. In considering any further representations, the Secretary of State could assess the risk factors identified in IK against the specific facts, including that the relationship was formed after both parties had left Turkey, the lapse of time, and the limited number of potentially relevant risk factors. The court did not encourage further representations, but confirmed that they remained available.
5. The challenge to the 5 April 2007 letter was also refused on the material supplied to the Secretary of State. The claimants were ordered to pay the defendant's costs, subject to detailed assessment unless agreed.