Mahmood v Secretary of State for the Home Department

On review of further submissions under paragraph 353 of the Immigration Rules, the court examines whether the Secretary of State’s decision was irrational or Wednesbury unreasonable. It does not decide for itself whether the claimant has a realistic prospect of success before an immigration judge. Detention pending removal is lawful only while the Hardial Singh principles are satisfied. The court must assess the whole factual matrix, including risk of absconding, refusal of voluntary return, non-co-operation and delay attributable to the detainee. No single factor is decisive. Article 8 does not confer a general right to remain in the United Kingdom merely because removal is non-criminal in character. The successful party will ordinarily receive its costs, subject to assessment.

The claimant, a Pakistani national facing removal, sought judicial review of decisions rejecting further asylum submissions and an alleged Article 8 claim. He also challenged his detention at Brook House Immigration Removal Centre between 6 June and 19 December 2014. Permission for judicial review was deemed granted after the Secretary of State failed to file an acknowledgement of service in time.

The court considered whether the further submissions amounted to a fresh claim under paragraph 353 of the Immigration Rules, whether removal would breach Article 8, and whether the detention complied with the Hardial Singh principles. It also determined costs and whether an appeal or permission application should stay removal.

1. Judicial review of paragraph 353 decision. The Secretary of State had to consider the further submissions with the previously considered material. The question was whether the material was significantly different and, taken together, created a realistic prospect of success before an immigration judge applying anxious scrutiny. The court’s role was confined to irrationality or Wednesbury unreasonableness; it was not entitled to form its own view of the merits. The decision letters showed that the Secretary of State had properly considered the submissions and reached conclusions within her decision-making powers.
2. The claimant had not provided cogent evidence of a personal real risk of serious harm in Pakistan. He had also not shown that the Pakistani authorities could not protect him or that he could not relocate within Pakistan. The removal challenge therefore failed.
3. Article 8. Article 8 did not give the claimant a right to remain simply because he had committed no criminal offence and wished to stay. The evidence disclosed no family or private-life circumstances making removal an interference with Article 8 rights. This part of the claim was totally without merit.
4. Detention. The Secretary of State intended to remove the claimant and had detained him for that purpose. Applying the Hardial Singh principles, the court assessed the reasonableness of the detention period, the prospect of removal and the Secretary of State’s diligence within the whole factual matrix. The claimant’s conduct, including repeated further submissions, withdrawal from voluntary return, disruption of a proposed removal and lack of co-operation concerning emergency travel documents, justified treating him as a real risk of absconding and contributed to the length of detention. Principles 2, 3 and 4 were satisfied, and the entire detention period was lawful.
5. The judicial review claim was dismissed. Costs were awarded to the Secretary of State and summarily assessed, after reductions, by reference to a recalculated schedule. Under CPR 52.7, any appeal or application for permission to appeal was expressly ordered not to operate as a bar to removal.

The judgment records that an earlier judicial review application had been refused by Upper Tribunal Judge Eshun on 16 September 2014. This substantive judicial review was then determined by the High Court (Administrative Court), which dismissed the claim.