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

For a submission to constitute a fresh claim under paragraph 353 of the Immigration Rules HC 395, it must be significantly different from material previously considered and, taken with that material, create a realistic prospect of success. The test is modest and asks whether the claim might succeed before the tribunal, not whether the Secretary of State considers it likely to succeed. The decision-maker must ask that question and apply anxious scrutiny to the new and existing material. A failure to engage with material evidence concerning the individual Article 8 rights of family members may itself give rise to a realistic prospect of success. Criminality, the deportation presumption, credibility concerns and an unlawful stay remain important matters for the tribunal’s proportionality assessment, but they do not automatically defeat a fresh claim.

The claimant, a Congolese national subject to a deportation order after fraud convictions, sought judicial review of the Secretary of State’s refusal to treat submissions of 18 July 2008 as a fresh human-rights claim. The submissions relied principally on a social-work and psychotherapy report concerning the claimant’s relationship with his wife and children, including a child with a serious medical condition. They also relied on the individual Article 8 rights of the family members and the increase in the minimum exclusion period following deportation.

The Secretary of State issued several refusal letters. The central issues were whether the new material was significantly different under paragraph 353 of the Immigration Rules HC 395, and whether, taken with the earlier material, it created a realistic prospect that the AIT would allow the Article 8 claim.

1. Judicial review granted. The decision refusing to treat the submissions as a fresh claim was set aside, and the matter was referred back to the AIT.
2. Paragraph 353 required two questions. First, whether the new material was significantly different because its content had not already been considered. Secondly, whether the new and previous material together created a realistic prospect of success. The latter is a modest threshold: it means more than a fanciful prospect, rather than probability or a final assessment of the merits.
3. The Secretary of State had to ask whether, on a referral to the AIT, the claimant might succeed. That is different from deciding whether the Secretary of State himself considered the claim meritorious. The decision-maker also had to apply anxious scrutiny to the material. The repeated refusal letters, their failure properly to engage with the Cohen report, and their reliance on an outdated assessment showed that the correct question had not been addressed.
4. The Cohen report was significantly new. It gave detailed evidence about the claimant’s close relationship with his son, the wife’s dependence on the claimant in caring for the child, and the likely effect of deportation on the family. The individual Article 8 rights of the wife, son and subsequently born daughter also required consideration under Beoku-Betts v SSHD [2008] UKHL 39. The altered exclusion policy, increasing the minimum period from three to ten years, was an additional significant change. The claimant’s asserted change of attitude, taken alone, was not.
5. The AIT’s existing findings about criminality, credibility, the presumption favouring deportation and the family’s unlawful accrual of rights remained relevant. The AIT nevertheless had to perform the Article 8 balancing exercise afresh. Those matters did not make success automatically or inevitably impossible. The claim was therefore a fresh claim and had to be referred back to the AIT.

First-instance judicial review. No earlier appellate decision is stated in the judgment.