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

A failed asylum seeker cannot invoke the former legacy-case process merely because the Secretary of State did not enforce removal. Former Immigration Rules paragraph 395C required a holistic assessment where a decision was required, but did not create a free-standing legacy policy or an entitlement to a decision.

For paragraph 353, the Secretary of State may assess factual disputes and decide whether a tribunal applying anxious scrutiny would find a realistic prospect of success. Delay may strengthen an Article 8 claim through genuine private or family ties, but post-determination passage of time does not itself diminish the public interest in immigration control. The claimant must show a sufficiently developed protected private life or another material factor.

Samir Boukhatem, R (on the application of) v Secretary of State for the Home Department was an application for judicial review of decisions refusing to treat further submissions as a fresh claim under paragraph 353 of the Immigration Rules.

The applicant, an Algerian national, had entered the United Kingdom in 2001. His asylum appeal had been dismissed and his further appeal rights were exhausted in 2002. His representatives sent a brief letter shortly afterwards seeking asylum leave, but the Tribunal held that it added nothing to the rejected claim. He later relied on delay, the legacy-case process, and his private life in support of an Article 8 claim.

The central issue was whether the Secretary of State’s decisions were irrational or Wednesbury unreasonable because the submissions had a realistic prospect of succeeding before the First-tier Tribunal.

1. The application for judicial review was dismissed. The combined decisions correctly applied paragraph 353 and Article 8. They were neither perverse nor irrational nor Wednesbury unreasonable.

2. The 2002 letter was not a fresh asylum or human-rights claim. It merely repeated a claim which had just been finally determined. It therefore gave the applicant no basis to say that the Secretary of State had delayed for nine and a half years in deciding an outstanding claim.

3. Former paragraph 395C of the Immigration Rules was a list of relevant factors for a removal decision. The legacy exercise did not create a separate policy or an entitlement to leave. Although delay may exceptionally be unlawful where a person was entitled to a decision under a more favourable policy and was prejudiced by the Secretary of State’s delay, this applicant had made no application requiring a decision. He could not claim the benefit of the former paragraph 395C process after its deletion.

4. Delay remained relevant under Article 8 in the limited sense explained in EB (Kosovo) v SSHD [2008] UKHL 41. Passage of time may permit deeper personal and social ties to develop. It may also affect the weight of immigration control where a dysfunctional system produces inconsistent and unfair outcomes. This case fell only within the first category. The Secretary of State’s failure to enforce removal after the asylum claim was finally determined was not culpable delay capable of materially reducing the public interest in removal.

5. The Secretary of State was not required to treat every factual issue in the applicant’s favour when applying paragraph 353. She could make a sustainable assessment of the evidence while recognising that a tribunal might take a different view. The undisputed matters showed that the applicant had remained without leave, had not actively pursued a substantive right to remain for lengthy periods, and had only scant evidence of private life.

6. The applicant’s friendships, integration and length of residence did not establish a realistic prospect that removal would be disproportionate under Article 8. He had no family life, children, business or other identified ties demanding protection. The public interest in immigration control had not been materially weakened.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review claim dismissed.
• Immigration Judge: The applicant’s asylum appeal was dismissed on 19 September 2002.
• Tribunal reconsideration stage: Permission to seek reconsideration was refused on 4 November 2002, exhausting the applicant’s appeal rights.