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

For a fresh asylum or human-rights claim under paragraph 353 of the Immigration Rules, further submissions must be significantly different from the material previously considered. They qualify only if their content has not already been considered and, taken with the earlier material, creates a realistic prospect of success.

At the permission stage, a claim should proceed where a properly arguable issue is raised. Questions concerning the effect of a time-limited concession on voluntary departure, and whether European Community rights might facilitate movement and residence for a non-Community spouse, were not so obviously untenable as to justify refusing permission.

The claimant, an Afghan national whose asylum claim and appeal had failed, sought permission to challenge the Secretary of State’s refusal to treat further representations as a fresh claim. The representations relied principally on his marriage to a British citizen, the birth of their child, proposed voluntary departure, and a possible move with his wife to Ireland.

Permission had been refused on the papers. The renewed application required the court to consider whether the new matters met paragraph 353 of the Immigration Rules and whether the proposed arguments concerning voluntary departure and European Community residence rights were arguable.

1. Permission granted. The renewed application raised issues which were properly arguable, notwithstanding the earlier refusal on the papers.
2. Paragraph 353 of the Immigration Rules requires a two-stage assessment. The further submissions must be significantly different from the material previously considered. They are significantly different only if their content has not already been considered and, taken together with the earlier material, creates a realistic prospect of success.
3. The marriage and birth of the claimant’s child constituted matters giving rise to consideration significantly different from the material previously examined. The principal question was whether, viewed with the earlier material, they created a realistic prospect of success.
4. The argument concerning the concession announced by Lord Bassam was at least arguable. The claimant was not necessarily within the category of persons who would leave voluntarily before the specified date, since he was already subject to a requirement to leave and proposals for removal.
5. The European Community law argument was also arguable. The proposed reliance on Metock v Ikeng, residence in Ireland, and the principle of reverse discrimination associated with Surinder Singh was not obviously untenable. The court did not decide the underlying European law questions.
6. The asserted danger of travel between Kabul and Islamabad did not persuade the court, particularly in light of available air routes. That point did not prevent permission being granted.

Permission was refused on the papers by Wilkie J on 22 April 2008. On renewal, the High Court (Administrative Court) granted permission to apply for judicial review.