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

For a human-rights claim to constitute a fresh claim, the material must be new and create a realistic prospect of success before an immigration judge. The threshold is modest where the claim has not previously been considered. Article 8 proportionality is not determined by asking whether a case is truly exceptional or by treating the Immigration Rules as having struck the complete Convention balance. Relevant circumstances include whether family life can realistically be enjoyed in the country of origin, the welfare of children, serious health conditions, and any role played by the Secretary of State in permitting family life to be established. A decision-maker must ask whether another properly directed tribunal could allow the claim, rather than merely expressing his own view of its merits.

The claimant, a Vietnamese national without leave to remain, married a recognised refugee from Vietnam after receiving permission from the Secretary of State to marry. They had a child in the United Kingdom, and the wife’s refugee status, illness and childcare responsibilities meant that she could not realistically accompany the claimant to Vietnam.

The Secretary of State refused further leave, directed removal and concluded that the claimant’s human-rights representations did not amount to a fresh claim under paragraph 353 of the Immigration Rules HC395. The central issues were whether the decision-maker applied the correct realistic-prospect test and whether removal could properly be treated as proportionate under article 8.

1. The application was allowed. The Secretary of State undertook to certify the representations as a fresh claim capable of appeal. The defendant was ordered to pay the claimant’s reasonable costs, to be taxed if not agreed.
2. Under paragraph 353 of the Immigration Rules HC395, the question was whether the new submissions, taken with the material previously considered, created a realistic prospect of success. The court adopted the guidance in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495. The threshold was modest, and the Secretary of State had to ask whether a properly self-directing immigration judge could allow the appeal, not whether he personally expected to succeed.
3. The October 2006 decision was unlawful because it treated the Immigration Rules as having struck the article 8 balance and applied an exceptional-case approach. The decision in Huang and Others v Secretary of State for the Home Department [2007] UKHL 11 established that the Rules did not themselves determine the Convention balance. The correct question was whether the interference with family life was a fair balance between the competing interests.
4. The decision-maker failed separately to assess the welfare of the claimant’s child. The court relied on Singh v Entry Clearance Officer for New Delhi [2004] EWCA Civ 1075, [2005] QB 608, for the requirement to treat the child’s welfare as a prime consideration in the article 8 balance.
5. The entry-clearance reasoning in R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 applied to voluntary migration where family members could live together in the country of origin. It did not determine a case where a recognised refugee could not return there. The wife’s refugee status, serious illness, the child’s welfare and the Secretary of State’s permission to marry were strong factors creating realistic prospects of success.
6. The court observed that some late and insubstantial article 8 claims might properly be certified as clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002, but that issue did not require determination.

Not stated in the judgment.