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

When assessing a further submission as a fresh claim under Immigration Rules rule 353, the decision-maker must consider whether the material is significantly different and whether it gives rise to a realistic prospect of success before an immigration judge. The decision letter must be read fairly and as a whole. Failure to reproduce the applicable test expressly does not by itself establish legal error if the reasoning shows that the test was applied with anxious scrutiny. Delay is a relevant factor in assessing the proportionality of removal under article 8, but prolonged unlawful residence and work may mean that no properly directed immigration judge could find removal disproportionate.

The claimant, a Turkish national, sought judicial review of a letter dated 10 July 2007 refusing to treat further representations as a fresh claim. His earlier asylum and Ankara agreement applications had failed. The further claim relied principally on article 8, based on his private life in the United Kingdom and the length of time he had remained and worked there.

The challenge alleged that the Secretary of State had failed to apply the two-stage approach in WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1780, and had failed to consider delay and private life properly. The central issue was whether the decision letter disclosed a lawful application of the fresh-claim test.

1. The claim was dismissed.

2. Under rule 353 of the Immigration Rules, the decision-maker had to consider whether the further material was significantly different from that previously considered and whether there was a realistic prospect of success before an immigration judge. The approach identified by Buxton LJ in WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1780 was the applicable framework.

3. A decision letter need not set out the test verbatim. It must be read fairly and as a whole. The omission of an express statement of the test does not demonstrate legal error where the reasoning shows that the decision-maker addressed both stages with appropriate anxious scrutiny.

4. The decision-maker had accepted, in substance, that the article 8 material was significantly different because the earlier decisions had not considered article 8. The letter also addressed the realistic prospect of success by concluding that removal would not give rise to a disproportionate interference with the claimant’s private-life rights.

5. Following the guidance in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, delay was a relevant factor in assessing the impact of firm and fair immigration control. Nevertheless, the claimant’s private life was based principally on unlawful work and residence, and no properly directed immigration judge could conclude that article 8 was satisfied. The decision letter had also considered delay by reference to paragraph 276A-D of the Immigration Rules, which the claimant did not satisfy.

6. The claimant was ordered to pay the Secretary of State’s costs, subject to assessment if not agreed.

First-instance judicial review. No prior judicial decision in the same proceedings was stated.