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

A refusal to treat further representations as a fresh claim is not necessarily an “immigration decision” attracting an in-country appeal. The court must identify a decision falling within section 82 of the Nationality, Immigration and Asylum Act 2002. Removal directions are distinct from the substantive decision to remove and do not themselves create an appeal right.

The difference between the “realistic prospect of success” and “clearly unfounded” formulations for fresh claims is, in practical terms, immaterial. Judicial review remains review of the decision on the material before the Secretary of State, rather than a de novo merits hearing. In Article 8 cases, the circumstances in which family life was formed, immigration history, the possibility of relocation and the absence of insurmountable obstacles may make removal proportionate.

The claimant, a Chinese national who had entered the United Kingdom unlawfully and whose later asylum claim had been refused without an appeal, challenged the refusal to treat further representations as a fresh claim and the setting of removal directions.

She argued that she was entitled to an in-country appeal under the Nationality, Immigration and Asylum Act 2002, that the Secretary of State had applied the wrong fresh-claim test, and that removal would disproportionately interfere with Article 8 family life arising from her relationship with a naturalised British citizen.

The court also considered whether it could revisit an earlier decision, made at the rolled-up hearing, after concluding that its initial decision on the appeal-right issue was manifestly wrong.

1. Disposition. Permission to apply for judicial review was granted on the BA (Nigeria) ground, but the claim was dismissed. Permission was refused on the fresh-claim and Article 8 grounds.

2. The claimant’s earlier asylum refusal was no longer juridically alive as an immigration decision capable of generating a further in-country appeal because she had not appealed within the prescribed period. The refusal of further representations did not fall within section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002, since the claimant had no leave before the representations and their refusal did not change her status.

3. Removal directions are not themselves an immigration decision under section 82(2)(g). They give effect to the prior substantive decision to remove. The right of appeal arises from the substantive decision made under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999, not from directions specifying the flight. The court applied GH v Secretary of State for the Home Department [2005] EWCA Civ 1182.

4. The reference to the WM (DRC) “realistic prospect of success” formulation did not disclose an arguable error. Following R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116 and AK (Sri Lanka) [2009] EWCA Civ 447, any theoretical distinction from the “clearly unfounded” formulation had no practical significance.

5. Judicial review of a fresh-claim decision is not a de novo hearing. The issue is ordinarily judged on the material available to the Secretary of State. The later evidence therefore could not ordinarily cure the original decision, although the Secretary of State had not objected to its consideration in this case.

6. On the assumed existence of family life, removal was not arguably disproportionate. The court considered the relationship’s precarious origin, the claimant’s serious immigration history, the absence of a child, the possibility of relocation to China and the absence of insurmountable obstacles. Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 was materially different because it involved a refugee spouse and a young child.

7. A court may recall a judgment before its order has been perfected in an exceptional case involving a plain or palpable mistake and strong reasons for avoiding the expense of an appeal. The court applied that principle to set aside its earlier decision.

8. The court observed that rolled-up hearings should ordinarily be accompanied by directions for evidence, additional evidence, trial bundles, skeleton arguments and authorities, since the ordinary procedural timetable assumes that permission has already been granted.

The judgment itself states that the claimant was granted permission to appeal. No later appellate decision is given.