SS, R (on the application of) v Secretary of State for the Home Department

A fresh claim decision is unlawful where the Secretary of State states the correct test but materially misunderstands the nature and relevance of new expert evidence. Further submissions must be assessed with anxious scrutiny, asking whether they are significantly different and create a realistic prospect of success before an independent tribunal.

The making of further submissions does not automatically render immigration detention unlawful. Detention may continue for a reasonable period while the submissions are promptly considered, provided removal remains realistically achievable within that period. Paragraph 353A of the Immigration Rules prohibits removal before consideration of further submissions, but does not prevent preparatory removal directions being made or retained.

The claimant, an Afghan national, challenged the refusal of further submissions said to constitute a fresh claim, his immigration detention, and removal directions made before the further submissions had been determined.

The further submissions relied principally on an educational psychologist’s report concerning learning difficulties and a country expert’s report concerning risks on return. The Secretary of State rejected them. The claimant had previously appealed unsuccessfully against refusal of further leave, and permission to appeal had been refused.

The central issues were whether the Secretary of State had lawfully applied paragraph 353, whether the detention complied with statutory, public-law, policy and Convention requirements, and whether paragraph 353A prohibited removal directions being set before the fresh claim decision.

1. Fresh claim. The decision-maker correctly identified the paragraph 353 test, namely whether the new material was significantly different and, taken with the material already considered, created a realistic prospect of success before an immigration judge. The decision-maker nevertheless acted irrationally by treating the educational psychologist’s report as if it merely duplicated the consultant psychiatrist’s evidence. The reports addressed different matters: cognitive impairment and learning difficulties on the one hand, and mental health on the other. The new report was capable of affecting the assessment of the claimant’s previous evidence, credibility and need for support. The decision-maker therefore failed to apply anxious scrutiny.
2. The country expert’s report did not materially add to the country and vulnerability evidence already considered by the First-tier Tribunal. That part of the further submissions did not amount to a fresh claim.
3. Detention. The claimant’s further submissions created an obstacle to removal, but not one which made detention immediately unlawful. The Secretary of State remained entitled to a reasonable period to consider them, provided she acted with diligence and expedition and retained a realistic prospect of removal within a reasonable period. The evidence showed prompt consideration, removal directions for a charter flight, and no breach of the Hardial Singh principles, article 5 of the ECHR, statute or policy.
4. The claimant’s vulnerability and learning difficulties did not establish that he was unsuitable for detention. It was reasonable to allow time to assess the newly produced expert report, particularly since it was supplied on the day detention began.
5. Removal directions. Paragraph 353A prevented actual removal before the further submissions had been considered. It did not prohibit preparatory steps, including setting or retaining removal directions, provided the directions did not take effect before the decision. This ground therefore failed.
6. The decision letter dated 5 March 2015 was quashed insofar as it rejected the further submissions based on the Sellwood report. The remaining challenges failed.

The judgment records that the claimant’s earlier appeal to the First-tier Tribunal was dismissed on 2 December 2013 and that permission to appeal to the Upper Tribunal was refused on 12 February 2014. This judicial review was subsequently brought against the fresh claim, detention and removal decisions.