Zhang, R (On the Application Of) v Secretary of State for the Home Department

In assessing a long-resident unsuccessful asylum claimant, the Secretary of State must base the decision on the documented history and must not treat difficulties in removal, without more, as creating an entitlement to leave. A fresh claim under rule 353 of the Immigration Rules requires further submissions that are significantly different from material previously considered and, taken with that material, create a realistic prospect of success. A decision materially founded on unsupported allegations about reporting, co-operation or conduct is unlawful. The appropriate remedy is to quash the decision and require a fresh decision by the Secretary of State.

The claimant, a Chinese national whose asylum appeal rights became exhausted in 2002, challenged the Secretary of State’s handling of his immigration status under the Legacy Policy. The Secretary of State later issued a decision dated 20 November 2013, considering the claimant’s Article 8 application under Appendix FM of the Immigration Rules and concluding that he had no basis to remain.

The claimant alleged failures to consider his length of residence, ties to China, removability, previous delay and whether his case was a fresh claim. Following late disclosure of immigration records, the central issue became whether the decision materially mischaracterised his history of co-operation, reporting and conduct.

1. Decision under challenge. The internal note of 18 March 2011 and the letter of 20 September 2012 were not decisions capable of founding the challenge. The operative decision was the Secretary of State’s letter of 20 November 2013.
2. Original grounds. The Secretary of State had considered the claimant’s length of residence. The evidence did not establish that removal was impossible. Even if removal could not currently be enforced, that fact alone created no entitlement to leave. The claimant had submitted no new evidence concerning his ties, or lack of ties, to China.
3. Fresh claim. Under rule 353 of the Immigration Rules, further submissions must first be significantly different because their content has not already been considered. If so, they must then be assessed with the earlier material to determine whether they create a realistic prospect of success. Since the claimant produced no new evidence, the fresh-claim argument failed.
4. Material error. The disclosed records showed repeated attempts to obtain an emergency travel document, substantial co-operation by the claimant, and generally maintained contact with the defendant. They did not support the decision letter’s assertions that he had reported only sporadically, had frustrated removal attempts, or had been aggressive towards reporting-centre staff. Those unsupported findings amounted to material errors.
5. Remedy. The cumulative effect of the errors required the decision of 20 November 2013 to be quashed. The Secretary of State was directed to make a fresh decision in the exercise of her own discretion, taking account of the correct documented history.

Permission to proceed was initially refused on the papers. On renewal, permission was granted by John Howell QC, sitting as a Deputy High Court Judge, with permission to amend the grounds. The Administrative Court then granted permission at the rolled-up hearing, quashed the decision dated 20 November 2013 and directed a fresh decision.