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

A fresh claim must be assessed using the two-stage approach identified in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495. The Secretary of State must first decide whether the new material is significantly different from material previously considered. If so, she must assess whether the new material, taken with the earlier evidence, creates a realistic prospect of success before a tribunal. That assessment must address all material considerations. Evidence may be relevant not only to the claimant’s true circumstances, but also to the consequences of having been treated by public authorities as belonging to a different age or status. A failure to consider such matters may make the refusal of a fresh claim unlawful.

The claimant challenged the Secretary of State’s refusal to revoke a deportation order and to treat further representations as a fresh claim. His earlier appeal to the Asylum and Immigration Tribunal had been unsuccessful. The central dispute concerned his date of birth and the significance of new evidence, including records showing that social services, schools and the criminal justice authorities had treated him as born in 1989, although the immigration judge had found that he was born in 1986.

Permission was granted by Dobbs J. The Secretary of State issued a further decision letter on 9 September 2008. The issue was whether the new representations, considered with all relevant existing material, gave the claimant a reasonable prospect of success before the Tribunal.

1. Claim allowed. The Secretary of State’s consideration of the further representations was inadequate.
2. Under the two-stage approach explained in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the Secretary of State had to decide whether the new material was significantly different from the material previously submitted and, if so, whether the totality of the material created a realistic prospect of success before a tribunal.
3. The new psychiatric evidence concerning the claimant’s mother did not materially assist. It mainly concerned the reliability of evidence already before the immigration judge and did not positively establish that the claimant was born in 1989. The new age assessment was similarly incapable, on its terms, of adding anything material either way.
4. The records of a 2003 child protection conference, the social services material, school records and the claimant’s treatment in the criminal justice system were different. They provided substantial evidence that the claimant had been treated for a prolonged period as having been born in 1989. That evidence was relevant whether or not 1989 was his true date of birth.
5. The Secretary of State was entitled to concentrate on evidence directed to the claimant’s actual date of birth, but she was required also to consider the implications of the claimant having been treated by social services, educational authorities and the criminal justice authorities as three years younger than she contended. Those matters might affect whether deportation was appropriate and might weigh with a tribunal.
6. It followed that the Secretary of State was not entitled to conclude that the claimant had no reasonable prospect of success before a tribunal. An appeal from abroad would not have been an adequate alternative remedy in the circumstances.

• Asylum and Immigration Tribunal: The claimant’s appeal against the deportation decision was unsuccessful. The immigration judge found that he was born in 1986.
• High Court (Administrative Court): Permission for judicial review was granted by Dobbs J. The claim was allowed and the Secretary of State’s decision was quashed or otherwise set aside to the extent reflected in the orders sought.