SN (Botswana) v Secretary of State for the Home Department

At the permission stage of judicial review challenging a refusal to treat an immigration claim as a fresh claim, the court should apply the low threshold of arguability. It should not finally determine the underlying human-rights claim where fuller argument is required.

Under paragraph 353 of the Immigration Rules, relevant questions include whether the claim was previously raised and whether, viewed through the eyes of a tribunal, it has a realistic prospect of success. Once arguability is established, permission should be granted and the substantive issue left to the full hearing.

The applicant sought permission to proceed with judicial review of the Secretary of State’s decision that her Article 3 claim should not be treated as a fresh claim. The claim concerned psychiatric assistance and health care in Botswana for a person accepted to be at serious risk of suicide, including whether her condition would prevent her from using facilities available there.

A separate fitness-to-fly issue was no longer pursued because removal would not take place until medical evidence confirmed that she was fit to fly. The case came to the Court of Appeal from the High Court, Queen’s Bench Division, before Mrs Justice Lang. The central issue was whether the proposed challenge had reached the threshold for permission.

1. Permission granted. The Court of Appeal was concerned only with whether the proposed judicial-review challenge had crossed the minimum threshold of arguability. It was not appropriate at that stage to decide whether the Article 3 claim would ultimately succeed.
2. Paragraph 353 of the Immigration Rules required consideration of whether the claim had already been raised in the earlier asylum and human-rights proceedings and whether, assessed on its merits through the eyes of a tribunal, it had a realistic prospect of success.
3. The proposed claim relied on the accepted serious suicide risk and on the suggested inability of the applicant, because of her psychiatric condition, to use suitable facilities available in Botswana. The court expressed doubt about the claim’s eventual success but could not dismiss it out of hand.
4. The threshold for a fresh claim was low and somewhat modest, as described by Buxton LJ in WM. The minimum threshold of arguability had been reached. The full judicial-review hearing would determine whether the claim had a realistic prospect of success, on full argument from both sides.
5. If the Administrative Court found the Secretary of State’s decision unlawful, it would be set aside and the matter remitted to the Tribunal for a hearing on the merits.

• Court of Appeal (Civil Division): Permission to proceed with judicial review was granted.
• High Court, Queen’s Bench Division: The matter had been before Mrs Justice Lang. The citation and precise terms of the decision under appeal are not stated in the judgment.