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

Under paragraph 353 of the Immigration Rules, the Secretary of State must first decide whether further submissions are significantly different from material previously considered. If so, the question is whether, taken with the earlier material, they create a realistic prospect of success before an immigration judge.

That assessment requires anxious scrutiny. The Secretary of State must ask whether an immigration judge could realistically allow the claim, rather than decide the underlying claim finally herself. Medical removal cases under Articles 3 and 8 of the Convention face an exceptionally high threshold. Removal will generally be unlawful under Article 3 only in exceptional circumstances comparable to a terminal illness at a critical stage, with inadequate care or support available on return. Article 8 requires compelling humanitarian considerations capable of outweighing immigration control.

The claimant, an Afghan national, sought judicial review of the Secretary of State’s refusal to treat further material as a fresh human rights claim under paragraph 353 of the Immigration Rules.

His earlier asylum claim had failed substantially because he was disbelieved. The further material concerned recurrent depression, symptoms of post-traumatic stress, previous self-harm, the risk of deterioration on removal, and the loss of medical and social support available in the United Kingdom. The Secretary of State considered the material on three occasions and concluded that an immigration judge would have no reasonable prospect of allowing an appeal under Articles 3 or 8.

The central issue was whether that conclusion was irrational or otherwise unlawful.

1. Claim dismissed. The Secretary of State had been entitled to conclude that an appeal based on the claimant’s medical condition and loss of support would be hopeless.
2. Paragraph 353 required a two-stage assessment. The Secretary of State had to decide whether the further material was significantly different from material previously considered and, if so, whether the material as a whole created a realistic prospect of success. The relevant question was whether an immigration judge applying anxious scrutiny might allow the claim, not whether the Secretary of State personally considered the claim meritorious.
3. The court applied the principles in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495. A decision under paragraph 353 was reviewable on Wednesbury grounds, but would be irrational if it had not been reached with anxious scrutiny.
4. The authorities established an exceptionally high threshold for resisting removal on medical grounds under Article 3. D v United Kingdom was the paradigm case, involving a terminal illness at a critical stage and no adequate care or support on return. The claimant’s depression, possible post-traumatic symptoms, treatment needs and reliance on support in Newcastle fell far short of that exceptional category. The reasoning in Bensaid v United Kingdom was particularly instructive because deterioration and inadequate support on return could be too speculative to engage Article 3.
5. Article 8 could be engaged by serious mental illness and interference with private life, but only the most compelling humanitarian considerations would normally outweigh legitimate immigration control. The claimant’s circumstances did not meet that threshold. The Secretary of State was therefore entitled to refuse to treat the further submissions as a fresh claim.
6. Permission to appeal was refused. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment under section 11 of the Administration of Justice Act 1991 and the relevant regulations. His publicly funded costs were to be assessed.

First-instance judicial review decision. The judgment states that permission to appeal was refused, leaving any application to the Court of Appeal.