Hummayun v Secretry of State for the Home Department

When considering whether further representations amount to a fresh claim under paragraph 353 of the Immigration Rules, the Secretary of State must assess the new material together with the material previously considered and ask whether an independent tribunal might realistically allow the claim.

In an Article 8 assessment, the best interests of a child are a primary consideration and must be considered first. They are not paramount and may be outweighed by countervailing considerations of substantial force, including the public interest in maintaining effective immigration control. Judicial review will not succeed merely because a claimant challenges the weight assigned to relevant factors where the reasoning is rational and supported by the evidence.

The claimant challenged the Secretary of State’s refusal to treat further representations as a fresh claim. Her earlier asylum claim and appeal had failed. The further representations relied principally on Article 8, the claimant’s family and private life in the United Kingdom, and the position and best interests of her daughter, who had lived in the United Kingdom since birth.

The challenge alleged that the Secretary of State had failed to consider the child’s circumstances properly and had reached an unreasonable or disproportionate conclusion. The court considered whether the decision letters addressed the relevant matters and whether an independent tribunal might realistically reach a different conclusion on the new material together with the earlier evidence.

1. The application was dismissed. The claimant did not establish that the further representations constituted a fresh claim or that the Secretary of State’s decision was unlawful.
2. Under paragraph 353 of the Immigration Rules, the Secretary of State had to consider the new material together with the material previously considered and ask whether an independent tribunal might realistically find in the claimant’s favour. The test was described as relatively modest in the claimant’s favour, but it remained necessary to assess the material as a whole.
3. The best interests of the child were a primary consideration in the Article 8 and proportionality assessment. They were not a paramount consideration or an automatic answer. The decision-maker had to consider them first, give them substantial weight, and could nevertheless conclude that other considerations outweighed them where those considerations were sufficiently strong.
4. The Secretary of State had considered the child’s age, nationality, residence in the United Kingdom, United Kingdom ties, education, ability to adapt to Pakistan, linguistic and cultural connections, relationship with her mother and the mother’s partner, and the consequences of removal. The resulting conclusions were reasonable and supported by the evidence.
5. The separate Article 8 balancing exercise required the claimant’s individual and exceptional circumstances to be weighed against the public interest in implementing a firm but fair immigration system. The court found no irrationality or unreasonableness in the assessment.
6. The claimant’s renewed safety arguments concerning Pakistan raised matters already determined in the failed asylum proceedings and were res judicata. The remaining family and private life arguments did not establish a sufficiently strong case to justify intervention.

The judicial review claim failed in its entirety. Costs were ordered in favour of the defendant in the sum of £10,000.

• First-tier Tribunal: The claimant’s appeal against refusal of her asylum application was rejected on 17 January 2011.
• Upper Tribunal: Permission to appeal was refused on 9 March 2011.
• High Court (Administrative Court): Permission for judicial review was granted, but the substantive application was dismissed.