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

On an application for judicial review of a refusal to treat further representations as a fresh Article 8 claim, the court’s role is supervisory. The question is whether the Secretary of State applied anxious scrutiny and reached a conclusion that was open to her, rather than whether the court would make the primary decision.

Under paragraph 359 of the Immigration Rules, the new material must create a realistic prospect of success when considered with the earlier material. In assessing Article 8 proportionality, a person’s immigration history, the strength and credibility of the claimed family life, the nature of the relationship with children, delay, and the practical effect of requiring an entry-clearance application may all be relevant. The principle in Chikwamba v Secretary of State for the Home Department is not an absolute bar to removal for that purpose.

The claimant, a Sierra Leonean national with no continuing leave to remain, sought judicial review of decisions refusing to treat further representations as a fresh claim based on Article 8 family life with Mrs Thompson and her children. The Secretary of State accepted that the representations were new but concluded that they did not create a realistic prospect of success.

The claimant challenged the decisions on grounds including inadequate investigation, failure to consider evidence, irrationality, failure to apply the Article 8 proportionality test, and reliance on removal followed by an application for entry clearance. Permission was granted only on the Article 8 issue. The central questions were whether the Secretary of State had applied the correct legal framework and whether her conclusion was legally open to her.

1. Application dismissed. The Secretary of State was entitled to conclude that the further material did not create a realistic prospect of success and that removal was proportionate.

2. Under paragraph 359 of the Immigration Rules, the new material had to be considered with the material previously examined. The material had not previously been considered, but the second limb required a realistic prospect of success, not certainty. The principles in WM (DRC) v Secretary of State [2007] IAR 327 governed that approach.

3. The court’s function was limited to review. It was not permissible to act as the primary decision-maker. The Secretary of State had to consider the material with anxious scrutiny, but had no general duty to investigate or repeatedly seek clarification from the claimant.

4. The Article 8 assessment required a fair balance between the individual’s rights and the community’s interests. The approach in Razgar [2004] 2 AC 368, as explained in Huang & Kashmiri [2007] 2 AC 167, had been considered and correctly applied.

5. Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420 did not establish that removal to pursue entry clearance was always disproportionate in a family case involving children. Its guidance arose in materially different circumstances, including a genuine asylum claim, a good immigration history, an accepted family relationship, and an insurmountable obstacle to return. Here, the claimant’s fraudulent and very poor immigration history, doubts about the subsisting relationship, the children’s age and the claimant’s non-biological relationship with them, and the absence of comparable delay were all relevant.

6. The later material could not retrospectively render the earlier decision unlawful. Both parties had a duty to progress the reconsideration, and the rolling production of evidence had to end at some point.