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

When deciding whether further representations amount to a fresh claim under Immigration Rules rule 353, the Secretary of State must consider the new material with the material previously considered. The inquiry is whether the material is significantly different and, if so, whether it creates a realistic prospect of success on a further appeal.

On judicial review, the court assesses the rationality of that decision rather than re-evaluating the evidence. A decision letter must be read fairly and as a whole. Imperfect drafting does not invalidate the decision where the reasoning and its rational basis can be understood.

The claimant sought judicial review of the Secretary of State’s refusal of representations concerning his proposed removal to Iraq. He relied on a relationship with a British woman and contended that removal would disproportionately interfere with his Article 8 rights under the Human Rights Act 1998.

The Secretary of State rejected the Article 8 claim and concluded under rule 353 of the Immigration Rules that the representations were not a fresh claim. Permission to apply for judicial review had been granted by His Honour Judge Birtles. The central issue was whether the decision letter disclosed a rational application of the fresh-claim test.

1. The claim for judicial review was dismissed. The claimant was ordered to pay the defendant’s costs, subject to summary assessment if not agreed.
2. The applicable approach under rule 353 was stated in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495. The Secretary of State had to consider the new material together with the old. First, the material had to be significantly different from material previously considered. Secondly, if it was significantly different, it had to create a realistic prospect of success in a further appeal.
3. The Administrative Court’s task was limited to reviewing the rationality of the Secretary of State’s decision. It was not the court’s function to re-evaluate the evidence or reach its own view on the merits.
4. Following the approach described in R(Durmaz) v Secretary of State for the Home Department [2008] EWHC 3301 Admin, the decision letter had to be read fairly and as a whole. Although the letter was less clear than it should have been, it identified the claimant’s precarious immigration status, addressed the claimed relationship, recorded the absence of adequate evidence about his domestic circumstances, and took account of his previous credibility findings and criminal conviction.
5. The Secretary of State was entitled to conclude that the material did not establish sufficiently compelling ties or a realistic prospect of success under Article 8. The shortcomings in the letter did not make the decision irrational.

Permission to apply for judicial review was granted by His Honour Judge Birtles. The High Court (Administrative Court) dismissed the claim.