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

Further submissions constitute a fresh claim under paragraph 353 of the Immigration Rules only where they are new and, taken with previously considered material, create a realistic prospect of success before the First-tier Tribunal.

A decision-maker must consider an Article 8 claim both within and outside the Rules. A later supplementary decision can cure an earlier failure to address the claim outside the Rules. A person has no continuing entitlement to a further asylum or legacy decision where the original claim has already been lawfully determined, or where the asserted benefit depended on a former policy that no longer applied when the decision was made.

The applicant sought judicial review of decisions dated 7 September 2012 and 2 April 2013 which refused to treat his further submissions as a fresh human-rights claim under paragraph 353 of the Immigration Rules.

He had made an asylum claim in 2000, but withdrew his appeal against its refusal in 2003. A second Home Office file, under a different name and date of birth, contained substantially the same asylum account and generated a further refusal in 2004. The applicant contended that the second claim remained unresolved and that he was entitled to favourable treatment as a legacy case. He also relied on his private life and voluntary religious teaching in the United Kingdom.

The claim was transferred from the Administrative Court. The central issues were whether there was any outstanding asylum decision, whether the Upper Tribunal had jurisdiction over the legacy argument, and whether the Article 8 submissions created a realistic prospect of success.

1. The application for judicial review was dismissed. The applicant had one asylum claim. The two Home Office files contained accounts which were not materially inconsistent or significantly different. The first claim had been lawfully refused and its appeal was withdrawn. In any event, the evidence established service of the 2004 immigration decision in accordance with regulation 7(1)(c) of the Immigration (Notices) Regulations 2003. There was therefore no outstanding asylum decision.

2. The Upper Tribunal’s transferred judicial-review jurisdiction extended to a challenge to a refusal to treat submissions supporting an asylum or human-rights claim as a fresh claim, and to a failure to decide such submissions. It did not extend to a free-standing challenge seeking leave under the former paragraph 395C legacy arrangements. The legacy point could, however, be considered as part of the Article 8 proportionality assessment.

3. The applicant could not claim the benefit of the former legacy arrangements. The legacy process was not an amnesty or a freestanding policy conferring leave after a specified period. Paragraph 395C had been deleted before the decision challenged. The Secretary of State was entitled to apply the policy in force when making the decision: [2008] EWCA Civ 308. The later authorities also showed that inclusion in the legacy process did not create an entitlement to a further decision or a grant of leave.

4. The September 2012 decision had initially addressed Article 8 only through the Rules. That would have been legally inadequate if it had stood alone, because the separate Article 8 claim outside the Rules also required consideration under section 6 of the Human Rights Act 1998. The supplementary decision of 2 April 2013 cured that defect by addressing Article 8 within and outside the Rules.

5. The respondent applied the correct paragraph 353 approach, including the judicial gloss in [2006] EWCA Civ 1495. Although the applicant had established a private life, the respondent was entitled to give substantial weight to his immigration history, his family ties in Pakistan, and the transferability of his skills. The conclusion that there was no realistic prospect of a successful Article 8 appeal was neither irrational nor otherwise unlawful.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review proceedings were transferred from the Administrative Court. The Tribunal dismissed the challenge to the paragraph 353 decisions.
• Earlier asylum proceedings: The applicant’s appeal against the refusal of his original asylum claim was withdrawn in 2003 before determination.