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

On judicial review of a fresh-claim decision, the court must ask whether the Secretary of State applied the correct realistic-prospect test with anxious scrutiny. Additional material must be relevant to the protection or human-rights issue raised. Irrelevant evidence does not make a decision unlawful merely because it was not considered. Article 8 does not ordinarily require continued residence where family contact can reasonably continue through entry clearance, visits or communication from abroad. Family or civil proceedings may also continue while the claimant is outside the United Kingdom where adequate procedural arrangements exist.

This was a renewed application for permission to apply for judicial review of the Secretary of State’s letter of 29 October 2007. The claimant challenged the treatment of further submissions concerning an alleged risk on return to Nigeria, his relationship with his son and pending family and civil proceedings.

The Secretary of State concluded that the further material did not create a realistic prospect of success before an immigration judge on asylum, Article 3 or Article 8 grounds. The central issue was whether that conclusion was irrational or otherwise unlawful.

1. Application refused. The Secretary of State’s decision was not shown to be Wednesbury unreasonable.
2. Under paragraph 353 of the Immigration Rules, whether further submissions amount to a fresh claim is initially for the Secretary of State. Judicial review examines whether the correct question was asked and whether the conclusion was reached with anxious scrutiny. The relevant question, following WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, was whether the material, taken with the earlier evidence, created a realistic prospect that an immigration judge would allow the claim.
3. The additional letters to the Metropolitan Police and other documents did not materially address the claimant’s alleged risk on return. Evidence irrelevant to the issue does not render the Secretary of State’s decision unlawful merely because it was not considered. A contrary approach would permit repeated production of irrelevant material to undermine a decision.
4. As to Article 8, the existence of family or private life did not make removal disproportionate. Even if contact with the claimant’s son were ordered, the claimant could seek entry clearance, and visits or communication could take place from Nigeria. His prolonged unlawful residence also made his immigration status precarious when the relationship began.
5. The pending family proceedings could continue without the claimant’s presence. Temporary admission was theoretically available, and the proceedings could be conducted from Nigeria through solicitors and modern communication facilities. The same considerations meant that removal would not deprive him of a reasonable opportunity to pursue his civil claim or infringe Article 6.

Permission to apply for judicial review was refused. A contribution of £500 towards the defendant’s costs was ordered.

This was a renewed first-instance application for permission to apply for judicial review. Permission was refused, with a £500 costs contribution ordered.