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

Judicial review cannot ordinarily be used to reopen an immigration decision determined through the statutory appeal structure. Where the earlier decision remains unchallenged, and there is no fresh claim or independent error in the later decision, the Secretary of State is entitled to rely on it.

A human rights issue does not turn judicial review into an appeal or make the court a primary decision-maker. It may affect the intensity of review, but the court must still identify unlawfulness.

A change in the understanding or application of the law may provide a basis for a fresh claim. The correction of the perceived exceptionality test in Huang could therefore justify reconsideration through the fresh-claim procedure.

The claimant, an Angolan national who had arrived in the United Kingdom as an unaccompanied minor, had unsuccessfully claimed asylum and human-rights protection. An Immigration Judge and Senior Immigration Judge rejected his Article 8 case, applying the approach understood from Huang. His appeal process was exhausted.

He later made further representations relying on developments in his private and family life. The Secretary of State treated them as a fresh claim, rejected them, and threatened removal. Judicial review was brought on the basis that the Secretary of State had unlawfully applied the earlier decision and the exceptionality approach. By the hearing, it was accepted that the case could not succeed as a fresh claim on the material then advanced. The issues were whether judicial review could reopen the concluded decision and whether the change in understanding of the law should instead be pursued through a fresh claim.

1. The claim was dismissed. Judicial review could not be used to challenge an unappealed decision of the Immigration and Asylum Tribunal on unchanged facts, or to challenge indirectly the application of binding Court of Appeal authority. Such an approach would undermine the statutory appeal and reconsideration structure and could repeatedly restart time for challenge by further applications for discretionary leave (paras 23–27).
2. The court was reviewing the Secretary of State for unlawfulness, not hearing an appeal or substituting its own proportionality decision. The fact that Article 8 was engaged could justify more intensive review, but it did not make the High Court a primary decision-maker (para 29).
3. The Asylum Policy Instructions and Immigration Directorate Instructions did not require a fresh proportionality decision where the human-rights claim had already been rejected through the appellate system. Applications for discretionary leave could not be used to undermine the statutory appeal and fresh-claim structure (paras 28–29).
4. Although it was unnecessary to decide the claimant’s substantive Article 8 merits, the court held that a change in the understanding and application of the law could found a fresh claim. The Immigration Judge and Senior Immigration Judge had plainly applied an exceptionality test, which misunderstood the effect of Razgar and Huang as explained by the House of Lords. The passage of time and the claimant’s developing private life also supplied potentially material new circumstances (paras 31–38).
5. The Secretary of State’s later letter did not address whether the law, as understood and applied by the immigration judges, had changed. The proper route for testing the effect of that change was a fresh claim, not the present judicial-review proceedings. The Secretary of State was awarded costs, subject to detailed assessment and not enforceable without leave; leave to appeal was refused (paras 38, 58, 68–70).

The judgment records that an Immigration Judge dismissed the claimant’s appeal on 1 July 2005. The Senior Immigration Judge rejected reconsideration in July 2005. No further application for reconsideration was made to the High Court. The present application for judicial review was dismissed by the High Court (Administrative Court).