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

In a paragraph 353 fresh-claim decision, the Secretary of State must ask whether a hypothetical immigration judge, applying anxious scrutiny, would see a realistic prospect of success. Her own view of the merits is only a starting point.

An Article 8 assessment must engage with material changes since earlier decisions and with the rights of all affected family members. The absence of insurmountable obstacles to relocation is relevant but is not determinative. Where an applicant is expected to apply from abroad, the decision-maker must address whether there is a sensible reason for that procedural requirement and then consider the substantive Article 8 case.

The applicant sought judicial review of decisions refusing to treat her further representations of 6 December 2011 as a fresh asylum or human-rights claim under paragraph 353 of the Immigration Rules. The representations relied on her continuing marriage to Mr Jones, their care of his elderly mother, and her relationships with her adult children and grandchildren in the United Kingdom.

The Secretary of State's letter of 31 July 2012 was supplemented on 8 March 2013 after criticism that it had addressed Article 8 only through the post-July 2012 Immigration Rules. The central issue was whether the decisions applied the correct fresh-claim test with the requisite anxious scrutiny.

1. Judicial review granted. The decisions of 31 July 2012 and 8 March 2013 were quashed.

2. The governing question under paragraph 353 was that stated in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495: whether a hypothetical adjudicator, applying anxious scrutiny, would find a realistic prospect of success. The Secretary of State could use her own merits view as a starting point, but not as the answer.

3. The respondent failed to give anxious scrutiny to material evidence that the marriage, previously found to be new and untested, had endured for a further three years and was supported by third-party evidence. She also failed to engage with the Article 8 rights of Mr Jones's mother and the GP evidence that she was dependent on him. Her reliance on the precarious nature of the marriage did not remove the need to consider those rights, consistently with Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39.

4. The absence of insurmountable obstacles to family relocation abroad was not the determining Article 8 question. The July letter treated it as determinative and was flawed on that basis.

5. The respondent also failed to address the Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 principle as explained in Secretary of State for the Home Department v Hayat (Pakistan) [2012] EWCA Civ 1054. She had to consider whether sound reasons justified requiring an entry-clearance application from Jamaica, including the likely disruption and the circumstances of Mr Jones's mother, before assessing the hypothetical judge's view.

6. The respondent could choose the rational weight of matters considered, but could not characterise a failure to consider material Article 8 matters as a question of weight. Use of the certification expression clearly unfounded did not independently require quashing because it posed a higher hurdle and the supplementary letter also stated the paragraph 353 test.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review was granted and the Secretary of State's fresh-claim decisions of 31 July 2012 and 8 March 2013 were quashed.
• Upper Tribunal (permission stage): Permission was initially refused on 6 September 2012 and granted on oral reconsideration on 7 March 2013.