Sean Devons Irons, R (on the application of) v The Secretary of State for the Home Department

Under paragraph 353 of the Immigration Rules HC 395, further submissions create a fresh claim only where the new and previously considered material together give a realistic prospect that a tribunal, applying anxious scrutiny, would decide in the applicant’s favour. The hypothetical-judge formulation is a helpful discipline, not a legal formula.

A refusal is rational where the decision-maker properly assesses the evidential weaknesses in an asserted risk on return and, alternatively, the availability of protection or internal relocation. In assessing Article 8 representations concerning a child, the decision-maker may address the child’s best interests in substance without using that express label, provided the evidence, family relationships and available support are rationally evaluated.

The applicant, a Jamaican citizen subject to an automatic deportation order, sought judicial review of the Secretary of State’s refusal to treat his further representations as a fresh claim. The refusal was supplemented by a letter considering later mental-health evidence about his younger half-sister.

He relied on an asserted risk from a criminal gang in Jamaica and on Article 8 evidence that his half-sister had experienced suicidal thoughts connected with his proposed deportation. He contended that neither matter had been tested by a fact-finding tribunal. The central issue was whether the new and old material gave a realistic prospect of success under paragraph 353 of the Immigration Rules HC 395.

1. The application for judicial review was refused. The Secretary of State asked the correct question under paragraph 353(ii) of the Immigration Rules HC 395: whether the new material, considered with the old, created a realistic prospect that a tribunal applying anxious scrutiny would allow the claim. The hypothetical-judge formulation was to be used as a helpful discipline rather than as a legal formula, consistently with YH, R (on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 116.

2. The refusal of the asylum and Article 3 claim was not Wednesbury unreasonable. It was rational to attach weight to the applicant’s previous failure to raise the alleged gang risk, the absence of substantiation for the threatening texts, and the lack of explanation for important features of the allegation. The Secretary of State was also entitled, in the alternative, to consider sufficiency of protection and internal relocation. The country guidance relied upon by the applicant did not establish that relocation within Jamaica would normally be unavailable.

3. The Article 8 ground also failed. Although the refusal letters did not expressly refer to the half-sister’s best interests, they addressed that issue in substance. It was rational to consider the earlier finding that the family relationship did not exceed normal emotional ties, the medical evidence attributing her distress partly to pre-existing psychological difficulties and a complex family history, and the continuing support available from CAMHS.

4. The later CAMHS material did not show a deterioration establishing a significant suicide risk. It described fleeting thoughts without intent and continuing professional support. There was therefore no realistic prospect that a tribunal would allow the claim on the new material. Costs were ordered for the respondent on the standard basis.

• Upper Tribunal (Immigration and Asylum Chamber): This judicial-review application challenging the refusal to treat further representations as a fresh claim was refused.
• Upper Tribunal (Immigration and Asylum Chamber): In the applicant’s earlier deportation proceedings, the Upper Tribunal upheld the First-tier Tribunal’s dismissal of his appeal.
• First-tier Tribunal: In June 2011, the Tribunal dismissed the applicant’s appeal against the deportation decision.