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

When deciding whether further submissions amount to a fresh claim under paragraph 353 of the Immigration Rules, the Secretary of State must consider whether the material is significantly different and, if so, whether it creates a realistic prospect of success when taken with the earlier material. The reviewing court examines rationality and must be satisfied that the correct question was asked and that anxious scrutiny was applied.

In an Article 8 case, proportionality requires a fact-sensitive balance between family and private life and the public interest in effective immigration control. Delay, family relationships, the practical consequences of requiring an out-of-country entry-clearance application, immigration history and the best interests of children may all be relevant. No test of exceptionality or requirement of parity after removal is imposed.

The claimant, a Jamaican national who had entered the United Kingdom using a false passport and name, challenged the Secretary of State’s repeated refusal to treat further representations as a fresh claim under paragraph 353 of the Immigration Rules.

The representations relied principally on Article 8 family and private life, including the claimant’s relationships with his children, the effect of delay, and the prospect of obtaining entry clearance to exercise access to a child. The Secretary of State’s later decisions considered further evidence, including an independent social worker’s report, police evidence, the children’s welfare and the effect of removal.

The central issue was whether the Secretary of State had applied the correct fresh-claim test with anxious scrutiny and had reached a rational proportionality assessment.

1. The application was dismissed. The Secretary of State had lawfully concluded that the further material did not create a realistic prospect of success and had given sufficiently clear reasons.
2. Under paragraph 353, the decision-maker must first ask whether the new material is significantly different because its content has not already been considered. Only if it is significantly different must the decision-maker ask whether, taken with the earlier material, it creates a realistic prospect of success. The court applied the guidance in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495.
3. The court’s role was supervisory. It had to consider whether the correct question had been asked and whether the material had been assessed with anxious scrutiny. It could not substitute its own assessment for that of the Secretary of State, although it could begin by considering its own view of the evidence.
4. The Article 8 assessment required the staged approach in Razgar v SSHD [2004] UKHL 27, together with the fact-sensitive balancing required by Huang v SSHD [2007] UKHL and EB (Kosovo) v SSHD [2008] UKHL 41. Exceptionality was not a legal test. Delay could strengthen an Article 8 claim through deeper relationships, altered expectations or evidence of systemic dysfunction, but its weight depended on the facts.
5. Chikwamba v SSHD [2008] UKHL 40 did not prevent consideration of entry clearance as part of the proportionality balance. This case was materially different because the claimant was expected to experience temporary rather than permanent separation from a child with whom he had valuable but occasional contact, and his immigration history included deception on entry. The rights of affected family members were considered in accordance with Beoku-Betts v SSHD [2008] UKHL 39.
6. The Secretary of State had considered the children’s best interests and welfare under section 55 of the Borders, Citizenship and Immigration Act 2009. No arguable breach of that duty was established.