L-B, R (on the application of) v Secretary of State for the Home Department

A later consideration of paragraph 395C of the Immigration Rules does not, without more, create a fresh immigration decision or a new right of appeal. Subsequent removal arrangements may simply confirm the original decision. A public law challenge to a discretionary removal decision requires proof of irrationality or failure to take account of relevant considerations. Sympathy is insufficient where the decision-maker has addressed the material circumstances, including family life, education and medical needs. Events occurring after the decision cannot ordinarily demonstrate an error in that decision.

The claimant, a Nigerian national, entered the United Kingdom with her husband and six children and later claimed asylum. Her appeal and subsequent reconsideration attempts failed. The Secretary of State later considered paragraph 395C of the Immigration Rules and maintained the decision to remove the family.

Judicial review permission was granted on amended grounds concerning whether paragraph 395C consideration created a new immigration decision carrying a right of appeal, and whether the Secretary of State’s later decision was unlawful on public law grounds. By the hearing, the original challenge concerning medical prophylaxis was academic.

1. The claim was dismissed. The Secretary of State’s later consideration of paragraph 395C did not create a new immigration decision. The 2007 correspondence considered factors arising after the original decision and concluded that they did not alter its outcome. It did not generate a further right of appeal under section 82(2)(g) of the Nationality, Immigration and Asylum Act 2002.
2. The decision in HH (Criminal Record - Deportation: "war zone") v Secretary of State for the Home Department [2008] UKAIT 00051 did not assist the claimant. The reasoning in ZT (Kosovo) v Secretary of State for the Home Department [2008] EWCA Civ 14, relied on by the Secretary of State by analogy, was consistent with treating later removal arrangements as confirmatory.
3. The issue whether any appeal would be in-country or out-of-country was academic because no new appealable decision existed. The court accepted that Etame v Secretary of State for the Home Department and another [2008] EWHC 1140 (Admin) was dispositive of that issue unless overturned.
4. The 9 May 2008 decision was not susceptible to challenge on Wednesbury grounds or for failure to consider relevant matters. The decision-maker had considered the children’s education, the sickle-cell condition and the availability of education and medical treatment in Nigeria. A later hospitalisation could not invalidate the earlier decision because it occurred afterwards. The claim therefore disclosed no arguable public law ground.

The judgment records earlier asylum and immigration proceedings, including dismissal of the claimant’s appeal on 24 August 2005, rejection of subsequent reconsideration applications, and permission granted by Sullivan J on amended judicial-review grounds. This court dismissed the remaining claim and refused permission to appeal and a stay of removal.