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

A claimant seeking indefinite leave to remain cannot establish a fresh claim merely by advancing assertions inconsistent with contemporaneous evidence. Under paragraph 353 of the Immigration Rules, the Secretary of State must assess whether the further material creates a realistic prospect of success before a different tribunal or court. A family concession based on family life in the United Kingdom applies only where its factual conditions are established, including the required family unit at the relevant date. A decision based on a rational assessment of contradictory evidence is not unlawful. Separately, where reliance on a concession would require blatant fraud by an adult family member, public policy may justify departing from the concession.

The claimant sought judicial review of the Secretary of State’s refusal to treat his claim for indefinite leave to remain on family grounds as a fresh claim under paragraph 353 of the Immigration Rules. He also challenged the refusal to grant indefinite leave to himself, his wife and their four children under a family concession policy.

The claimant asserted that he had remained in the United Kingdom and had lived with his family as a unit from their arrival in October 2003. The Secretary of State relied on the claimant’s wife’s contemporaneous asylum interviews and later evidence, which indicated that he remained in Pakistan and had not accompanied the family to the United Kingdom. The issues were whether the factual requirements of the concession were met, whether the further material amounted to a fresh claim, and whether the decisions were unlawful under the European Convention on Human Rights.

1. The judicial review claim was dismissed. The Secretary of State’s decision was held to contain no error of law or irrationality and to provide a complete answer to the claim.

2. The claimant satisfied the first two requirements of the family concession: he had applied for asylum before 2 October 2000, and, following refusal of that claim, had no further avenue of appeal and had not been removed. The disputed requirements were whether he had returned to Pakistan before 24 October 2003 and whether the family formed a family unit in the United Kingdom on that date.

3. The Secretary of State was entitled to prefer the claimant’s wife’s contemporaneous accounts. Those accounts stated that the claimant was in Pakistan, had not travelled with the family because there was insufficient money, and had not claimed asylum or sought leave to enter the United Kingdom. The later statements asserting that he was already in the United Kingdom were materially inconsistent with that evidence. The resulting factual assessment was rational and disclosed no error of law.

4. The Secretary of State also lawfully concluded that the further representations did not amount to a fresh claim under paragraph 353 of the Immigration Rules. The possibility of the whole family returning to Pakistan was a lawful and reasonable answer to the residual Article 8 claim, particularly given the rejection of the wife’s asylum claim and appeal.

5. The judge made an additional observation that, had it been necessary to decide whether the claim was based on the wife’s deliberate falsehoods, he would have rejected reliance on the concession. Public policy could permit departure from an otherwise applicable administrative concession where bringing the family within it required blatant fraud by an adult member. That observation was not the basis of the decision.

6. The claimant was ordered to pay the defendant’s costs, assessed on the standard basis if not agreed.

Not stated in the judgment.