Card v Secretary of State for the Home Department

For a further human-rights claim to constitute a fresh claim under Immigration Rules rule 353, the new material must not have been previously considered and, taken with the earlier material, must create a realistic prospect of success. The threshold is modest. The decision-maker must ask whether an immigration judge applying anxious scrutiny might reach a different conclusion, rather than whether revision of the earlier decision is required.

In an Article 8 proportionality assessment, the impact of removal on all those sharing family life must be considered directly. A general assessment of whether family members could relocate, or an assessment focused principally on the claimant, is insufficient. Important changes in factual findings, particularly concerning medical needs and relocation, require clear reasoning.

The claimant, a Jamaican national convicted of serious drug offences, challenged the Secretary of State’s refusal to treat further representations as a fresh human-rights claim. Earlier immigration proceedings had considered the proportionality of his deportation under Article 8, and permission to appeal had been refused by Burnton LJ.

The further representations relied on the House of Lords’ decision in Beoku-Betts v Secretary of State for the Home Department, concerning the need to consider the Article 8 rights of all family members. The claimant argued that the Secretary of State had failed to engage directly with his partner’s rights, had inadequately reasoned a different view on relocation to Jamaica, and had applied the wrong rule 353 question.

1. The claim succeeded. The Secretary of State’s decision dated 8 June 2009 was quashed. The claimant was awarded the costs of the application, with detailed assessment of publicly funded costs in the absence of agreement.
2. Under Immigration Rules rule 353, further submissions are significantly different only if their content has not already been considered and, taken with the material previously considered, creates a realistic prospect of success notwithstanding rejection. Applying WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the question is whether an immigration judge applying anxious scrutiny might reach a different view. It is not whether the new material would require the earlier decision to be revised.
3. Beoku-Betts v Secretary of State for the Home Department [2009] 1 AC 115 required the impact of removal on all those sharing family life with the claimant to be considered in the Article 8 proportionality assessment. The earlier tribunal’s consideration of whether the claimant’s partner and her daughter could relocate to Jamaica was not the same as considering directly the impact of his removal on the partner’s Article 8 rights.
4. The Secretary of State had expressly considered the daughter’s position but had not specifically engaged with the partner’s Article 8 rights. That was a legal error, not a technical defect. The earlier tribunal’s decision did not provide a Beoku-Betts-compliant assessment, and the refusal of permission to appeal did not cure that defect.
5. The decision letter also stated that the partner and daughter could relocate abroad, contradicting the earlier finding that relocation was unreasonable because of the daughter’s medical needs. A later different view was legally possible, but it required an explanation. The reasoning instead focused on the daughter’s independence and the possibility of maintaining contact, without adequately addressing the continuing need for medical treatment and the partner’s family ties.
6. The Secretary of State’s formulation that no issue required the earlier decision to be revised did not satisfy rule 353 and WM. Given the serious criminality but also the evidently difficult Article 8 balance, careful application of the Beoku-Betts substantive approach and the WM procedural test was particularly important.

The judgment itself states that the claimant’s earlier appeal was dismissed by the AIT, reconsidered, and determined afresh in July 2007. Burnton LJ refused permission to appeal on 20 May 2008. The present court quashed the Secretary of State’s later refusal of the fresh claim.