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

In a fresh-claim case based on Article 8 private life, the question is whether the new material, considered with the earlier evidence, creates a realistic prospect of success before an Immigration Judge applying anxious scrutiny. The threshold is modest. The assessment must address the disruption caused by removal and must balance the individual’s private-life interests against the need for effective and consistent immigration control. Article 8 does not confer an automatic right to choose the country in which private life is pursued. Where removal causes only ordinary disruption and no serious hardship, the Secretary of State may conclude that removal is proportionate and that the fresh claim has no realistic prospect of success.

The claimant, a Malawian national, sought judicial review of the Secretary of State’s refusal to treat further submissions as a fresh claim under paragraph 353 of the Immigration Rules. The submissions concerned principally her daughter, who had lived in the United Kingdom since childhood, attended school here and become settled in the community.

Permission was initially refused on paper but granted on renewal. The Secretary of State later supplemented the decision letter by addressing the Article 8 private-life case and proportionality. The central issue was whether the further material created a realistic prospect that an Immigration Judge would allow an Article 8 appeal.

1. Application dismissed. The Secretary of State had not acted irrationally in concluding that the further submissions did not create a realistic prospect of success before an Immigration Judge.
2. Under paragraph 353 of the Immigration Rules and WM (DRC) v Secretary of State for the Home Department, the court had to consider whether the new material, taken together with material previously considered, crossed the modest realistic-prospect threshold.
3. The relevant Article 8 issue was interference with private life, not family life, because mother and daughter would be removed together. The correct question was proportionality. The Secretary of State was entitled to balance the disruption of removal against the public interest in effective and consistent immigration control.
4. The Secretary of State had properly considered the effect of removal, the claimant’s and her daughter’s immigration history, and the rationale formerly reflected in DP5/96. The claimant’s daughter had shown adaptability and the evidence did not establish extreme educational, social or developmental difficulties or serious hardship on return.
5. Applying the approach in R (Razgar) v Secretary of State for the Home Department, the interference with private life was proportionate. There was no reasonable prospect of an Immigration Judge deciding otherwise. The judicial review claim was dismissed.