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

For paragraph 353 of the Immigration Rules, the question is whether further representations create a realistic prospect that an immigration tribunal would allow an appeal, not whether the Secretary of State personally considers the claim meritorious.

Unsupported assertions will rarely satisfy that threshold. Business disruption and children’s education abroad do not, without evidence of exceptional hardship or unavailable equivalent education, establish a realistic prospect of disproportionate interference under Article 8.

The claimant sought judicial review of the Secretary of State’s refusal of further Article 8 representations and decision that they did not amount to a fresh claim under paragraph 353 of the Immigration Rules.

He relied on his United Kingdom businesses, their employees, and the education and family life of his two children. The issues were whether the correct paragraph 353 test had been applied and whether the refusal was irrational.

1. The application was dismissed. The Secretary of State had applied the correct paragraph 353 test: whether there was a realistic prospect that an immigration tribunal would reach a different conclusion, rather than whether the decision-maker personally considered the claim meritorious.
2. The claimant’s assertion that removal would inevitably cause his businesses to close and employees to lose their jobs was unsupported by evidence. Other directors and partners existed, and business failure was not the only rational conclusion.
3. The fact that the children might have to leave education in the United Kingdom and resume it in Turkey did not, without more, establish a realistic prospect of disproportionate interference under Article 8(2). There was no evidence that equivalent education was unavailable or that an exceptional connection or hardship existed.
4. The claim failed. The claimant was ordered to pay the defendant’s costs.

The judgment was a first-instance judicial review. The claimant’s earlier asylum appeal had been dismissed by an adjudicator on 2 April 2004, and permission to appeal to the Tribunal was dismissed on 29 June 2004.