Bailey & Ors v Secretary of State for the Home Department

For a fresh claim under paragraph 353 of the Immigration Rules, the question is whether the further material is significantly different and creates a realistic prospect of success before an adjudicator applying anxious scrutiny. The threshold is modest. The decision-maker must assess both factual and legal issues with anxious scrutiny and must not determine disputed credibility or evidential weight as though finally deciding the claim. Adverse credibility findings are not necessarily determinative. Objective evidence may qualify or outweigh them. Material changes in family circumstances, including social-services involvement and significant relationships, may create a realistic prospect of success under Article 8. A failure to consider such matters may be irrational and unlawful.

The first claimant, a Jamaican national, sought permission to challenge the Secretary of State’s successive refusals to treat further representations concerning her and her six children as a fresh claim under paragraph 353 of the Immigration Rules. The representations included evidence concerning the children’s continuing involvement with local authority services, the first claimant’s mother in the United Kingdom, and the family’s recent residence with a partner who had indefinite leave to remain.

The Secretary of State maintained that the material raised no significantly different issues and disclosed no breach of Article 8. The court considered whether there was an arguable case that the representations could produce a different outcome and therefore amounted to a fresh claim.

1. Permission granted. The court was concerned only with whether there was an arguable case that a fresh claim might produce a different outcome. It was not determining the substantive judicial review claim.
2. Paragraph 353 required a two-stage assessment. The further submissions had to contain material not previously considered and, taken with the earlier material, create a realistic prospect of success. The threshold was modest. The question was not whether the Secretary of State considered the claim likely to succeed, but whether an adjudicator applying anxious scrutiny might do so.
3. Anxious scrutiny applied both to the evaluation of facts and to the legal conclusions drawn from them. Adverse credibility findings were relevant but not necessarily determinative. Objective evidence could qualify or outweigh those findings.
4. There was an arguable serious misdirection concerning the removal of the children from the local authority’s at-risk register and the ending of a child protection plan. The continuing and substantial involvement of children’s services arguably formed part of the family’s Article 8 circumstances and might not be replicated in Jamaica.
5. The Secretary of State also arguably failed to give adequate consideration to the children’s grandmother in the United Kingdom, the partner’s paternal role, and the family’s new residential circumstances. Those matters, considered with the existing evidence, could constitute fresh material capable of creating a realistic prospect of success.
6. The court therefore granted permission to apply for judicial review. It did not determine the remaining arguments, which were left for the substantive hearing.

This was a first-instance application for permission to apply for judicial review. The judgment records that an Immigration Adjudicator determined an earlier appeal on 1 May 2003, but no citation for that decision is stated.