RA & Anor, R (on the application of) v The Secretary of State for the Home Department

A dependent child does not ordinarily make a separate asylum or human-rights claim merely because the child’s interests differ from those of the parent. Whether independent treatment is required is fact-sensitive. It will be exceptional and may arise where there is a clear and obvious conflict between parent and child.

In considering family representations, the Secretary of State must nevertheless treat the child’s best interests as a primary consideration under Borders, Citizenship and Immigration Act 2009, section 55. Where new material identifies a risk that a parent’s deteriorating mental health will impair care for the child on return, that risk must be addressed. Failure to consider it is a failure to consider material matters and to apply the anxious scrutiny required by paragraph 353 of the Immigration Rules.

This was an application for judicial review of decisions made on 22 and 23 January 2015. The decisions refused to treat further representations concerning BF and her United Kingdom-born son, RA, as a fresh asylum or human-rights claim.

BF and RA were removed to Nigeria later on 23 January 2015. RA had previously been a dependant on his mother’s asylum claim. He had also spent a period in foster care while concerns about BF’s mental health and parenting capacity were assessed.

The issues were whether RA had made a separate claim with an in-country right of appeal and whether the refusal to treat the January 2015 representations as a fresh claim lawfully considered RA’s best interests.

1. Judicial review granted. The decisions of 22 and 23 January 2015 were flawed insofar as they rejected the representations without properly considering RA’s best interests as a primary consideration.

2. A child may make an asylum or human-rights claim in his own right while remaining dependent on a parent’s claim. However, the Secretary of State is not generally required to infer such a claim merely because the interests of child and parent diverge. Separate treatment is fact-sensitive and a clear, obvious conflict of interests may justify it, but that will be unusual. Differences in the prospects of success of family members can ordinarily be addressed within a single family claim.

3. The question on judicial review was whether the Secretary of State erred by failing to treat RA as having advanced a separate claim, rather than whether a separate claim was a precedent fact. On the representations made between 2012 and January 2015, RA’s position was advanced as part of BF’s claim. The Secretary of State therefore acted lawfully in treating his claim as running with his mother’s. He had no separate in-country appeal under section 92(4) of the Nationality, Immigration and Asylum Act 2002; his available appeal against the earlier removal decision was out of country.

4. Under paragraph 353 of the Immigration Rules, the decision-maker must ask whether there is significantly different new material which, considered with the earlier material, creates a realistic prospect of success. That assessment requires anxious scrutiny, following R (on the application of WM (DRC)) v Secretary of State for the Home Department [2006] EWCA Civ 1495.

5. The Secretary of State had lawfully rejected BF’s claim considered solely as her own. In the special circumstances of this case, however, the January representations raised the effect on RA of a deterioration in BF’s mental health in Nigeria. The refusal letters did not address that risk or its likely consequences for RA. The information about their warm relationship did not answer it. That omission breached the section 55 duty, omitted material considerations, and undermined the conclusion that there was no realistic prospect of success before an immigration judge.

• Upper Tribunal (Immigration and Asylum Chamber): Granted judicial review of the Secretary of State’s decisions of 22 and 23 January 2015 refusing to treat the further representations as a fresh claim.
• First-tier Tribunal / Immigration Judge: In 2010, BF’s appeal against the refusal of her asylum and human-rights claim was dismissed. RA did not bring a separate appeal.