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

For a fresh claim under paragraph 353 of the Immigration Rules, the Secretary of State must consider the new material with the material previously considered. The question is whether the material is significantly different and, taken together, creates a realistic prospect of success. The threshold is modest. The court must also consider whether the Secretary of State asked the correct question and applied anxious scrutiny.

Following Beoku-Betts v Secretary of State for the Home Department, the individual human rights of family members must be taken directly into account. That does not require a fresh claim where the earlier decision already considered the family unit and the affected child’s circumstances in substance. The claim failed because the alleged changes were cumulative and did not disclose a realistic prospect of a different outcome.

The claimant, a Jamaican national facing deportation after a serious drugs conviction, sought judicial review of decisions refusing to treat further representations as a fresh claim under paragraph 353 of the Immigration Rules. The representations relied on developments in his daughter’s epilepsy, learning difficulties and behavioural problems, the claimant’s continuing family role, the passage of time, and the effect of Beoku-Betts v Secretary of State for the Home Department on the assessment of family rights under article 8.

The Secretary of State made a further decision on 23 October 2008. The central issue was whether the new material, taken with the material previously considered, created a realistic prospect of success before an Immigration Judge, and whether the Secretary of State had unlawfully failed to consider the daughter’s rights directly.

1. The application was dismissed. The claimant had not shown that the Secretary of State acted unlawfully in deciding that the further submissions did not amount to a fresh claim.
2. Under paragraph 353 of the Immigration Rules, the decision-maker must consider the new material together with the old material. The two questions are whether the new material is significantly different and, if so, whether the material taken as a whole creates a realistic prospect of success. The test is modest and does not require certainty.
3. The Secretary of State’s decision is unlawful if the wrong question is asked or anxious scrutiny is not applied. The two limbs must be assessed cumulatively rather than separately.
4. Following Beoku-Betts v Secretary of State for the Home Department, the human rights of family members affected by removal must be taken directly into account. There was a greater risk before that decision that an adjudicator would adopt an unduly narrow approach.
5. That principle did not assist the claimant. The material showed that his daughter’s condition had already been placed at the forefront of the Secretary of State’s and adjudicator’s reasoning. The new evidence was largely an updating of the earlier evidence and did not materially alter the factual landscape. The claimant’s immigration history, serious offending and the recommendation for deportation remained weighty countervailing considerations.
6. The recent change from a possible period of exclusion to permanent exclusion carried little weight in the context of the daughter’s age. The court therefore refused permission to appeal, but ordered an expedited copy of the judgment and authorised provision of that copy at public expense.

The claim was brought following the refusal of permission on the papers by Mitting J. Permission was subsequently granted by King J in June 2007. The Administrative Court dismissed the judicial review claim. Permission to appeal was refused, although an expedited judgment was ordered.