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

For representations to constitute a fresh claim under paragraph 353 of the Immigration Rules, the new material, taken with the existing material, must create a real prospect of a favourable decision. The threshold is low but requires a reasonably arguable case that the outcome might differ. Matters already considered by the appellate authority are not new merely because the claimant’s condition continues. Additional residence or a subsequent marriage will not necessarily satisfy the test where the existing circumstances were already assessed and no material consequences are shown. A discretion to grant leave outside the Immigration Rules is lawfully exercised where the Secretary of State considers the relevant circumstances and reaches a rational conclusion.

The claimant, a Turkish national who had lived in the United Kingdom since 1993, sought permission to apply for judicial review of the Secretary of State’s decision of 7 August 2007. Earlier asylum and human-rights appeals had been dismissed, including an appeal in 2003 concerning his physical and mental health and his private life in the United Kingdom.

The claimant argued that later representations, including his remarriage and four further years of residence, amounted to a fresh claim under paragraph 353 of the Immigration Rules. He also alleged that the Secretary of State had failed adequately to consider the representations and had failed properly to exercise the discretion to grant leave outside the Rules.

1. Permission refused and claim dismissed. The claimant failed to show a reasonably arguable case that the Secretary of State had erred in law.
2. Under paragraph 353 of the Immigration Rules, the question was whether the new material, considered with the material previously before the appellate authority, created a real prospect of a favourable result. Although the threshold was not demanding, the claimant had to show a reasonably arguable case.
3. The claimant’s physical and mental health were not new matters. The 2003 adjudicator had already considered the medical report addressing both conditions. The subsequent marriage did not establish a different outcome, particularly as there was no evidence that the claimant’s wife could not accompany him to Turkey. The disruption to his private life had also been considered previously. The additional four years of residence did not make a different result reasonably arguable.
4. The long-residence rule did not assist the claimant. The relevant 14 years had to be accumulated before enforcement action began, and enforcement had commenced before that period was reached.
5. The Secretary of State’s decision letter showed that discretion to grant leave outside the Immigration Rules had been considered. There was no reasonably arguable basis for concluding that the discretion had not been exercised or that relevant matters had been ignored.
6. Costs of £480 were summarily assessed against the claimant for preparing the acknowledgement of service. Attendance costs were not awarded because the applicable conditions were not met.

The application for permission had previously been refused on the papers by Mr Justice Davis on 14 March 2008. The present court dismissed the renewed application and summarily assessed the defendant’s costs at £480.