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

A refusal to treat further human-rights representations as a fresh claim is reviewable on Wednesbury grounds, applying anxious scrutiny. The question is whether a reasonable decision-maker could conclude that an immigration judge would have no realistic prospect of reaching a different result.

Where removal may affect children, their best interests and well-being must first be identified and treated as a primary consideration. The decision-maker must then assess whether other considerations, including immigration control, outweigh them. New evidence cannot be rejected merely because it could have been produced earlier, although its lateness may affect reliability. Where the authorities decide to obtain specialist children’s advice, it is unreasonable to proceed without properly informed advice when the relevant material could have been supplied in time.

The claimant, a Malawian national, challenged decisions refusing to treat further representations as a fresh human-rights claim under paragraph 353 of the Immigration Rules. The representations concerned her Article 8 relationship with her two children and the duty under section 55 of the Borders, Citizenship and Immigration Act 2009. She also challenged the decision to remove her to Malawi without waiting for the Office of the Children’s Champion to review new evidence, including an independent social-worker’s report.

The central issues were whether the further evidence created a realistic prospect of success before an immigration judge, and whether proceeding with removal complied with section 55 and the applicable principles concerning children’s best interests.

1. Fresh claim. The claim succeeded. Under paragraph 353, the court’s supervisory task was to ask whether the Secretary of State asked the correct question and applied anxious scrutiny. The court was not to decide the fresh-claim question for itself. The relevant threshold was whether the new material, taken with the previously considered material, created a realistic prospect of success before an immigration judge.
2. Material which was available, or could reasonably have been available, earlier was not an absolute bar. Its lateness could bear on credibility and reliability, but it had to be assessed rather than automatically disregarded.
3. The new material included independent evidence of the children’s strong emotional ties to their mother and the serious psychological impact of separation. A reasonable decision-maker could not conclude that an immigration judge would have no realistic prospect of accepting that evidence or applying the correct Article 8 and section 55 principles.
4. The approach in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 required the decision-maker first to identify the children’s best interests, understood as their well-being, and treat them as a primary consideration. The decision-maker must then ask whether the strength or cumulative effect of other considerations outweighed those interests. The earlier immigration decision had not applied that approach.
5. The Secretary of State also acted unlawfully in proceeding with removal without properly informed advice from the Office of the Children’s Champion. Although section 55 did not expressly require consultation with that office, the decision to consult it, the importance of the new material, and the availability of sufficient time made it unreasonable to proceed without its advice.
6. The decisions refusing a fresh claim and the decision to proceed with removal were therefore Wednesbury unreasonable.

First-instance judicial review proceedings. The judgment records earlier refusals of permission, injunctions and applications for a stay, but this court granted the substantive judicial review challenge.