Nadar, R (on the application of) v Secretary of State for the Home Office

Under paragraph 353 of the Immigration Rules, further submissions do not constitute a fresh claim where they merely repeat material previously considered and rejected. In that event, the Secretary of State need not go on to assess whether the supposed new material gives the claim a realistic prospect of success. A longer period of residence, without new factual particulars, does not convert a previously rejected assertion of private life into fresh material engaging Article 8. The decision-maker must nevertheless apply anxious scrutiny and reach a rational conclusion on the material before him.

The claimant, an Afghan national, sought judicial review of the Secretary of State’s refusal to treat further submissions as a fresh asylum or human-rights claim. His original asylum and human-rights appeal had been dismissed by the Asylum and Immigration Tribunal. In 2008 he relied principally on an asserted private life in the United Kingdom, together with a policy argument concerning delayed consideration of Afghan asylum claims.

The policy argument had been rejected by the Court of Appeal in H, Q and S v Secretary of State for the Home Department, 2009 EWCA Civ 334. The remaining issue was whether the Secretary of State had correctly applied paragraph 353 of the Immigration Rules to the Article 8 submissions.

1. The claim for judicial review was dismissed. The Secretary of State had complied with paragraph 353 of the Immigration Rules.

2. The claimant’s original assertion in 2004 that he had established a private life in the United Kingdom was unparticularised, had been considered and rejected, and had not been pursued on appeal. The 2008 submissions repeated that assertion without adding particulars. The mere passage of additional time in the United Kingdom did not constitute new facts or matters.

3. On the material before the Secretary of State, no rational decision-maker could have concluded that the 2008 representations raised new matters capable of founding a fresh Article 8 claim. The first condition in paragraph 353 was therefore not satisfied.

4. Because there was no fresh material, the further hypothetical question—whether the putatively new material would have a realistic prospect of success before a tribunal—did not arise. The Secretary of State was not required to undertake that second-stage assessment.

5. The court also rejected the concern that the decision lacked anxious scrutiny. The Secretary of State had sufficiently scrutinised the circumstances and reached the only rational conclusion available on the evidence. The claimant’s proposed reliance on the Article 8 point was in any event procedurally defective because it was difficult to discern from the original grounds and would have required amendment.

Costs were subject to detailed assessment if not agreed.

The claimant’s original asylum and human-rights appeal was dismissed by the Asylum and Immigration Tribunal. The present proceedings were a first-instance judicial review of the Secretary of State’s decision of 4 February 2008.