Kwame Anyemedu Asare, R (on the application of) v The Secretary of State for the Home Department

Further submissions amount to a fresh human rights claim only if, when considered with previously considered material, they create a realistic prospect of success before another tribunal. The decision-maker may conclude that the material is not significantly different where it adds no material evidence of dependency, compelling family or private life circumstances, or inadequate treatment abroad.

A person who cannot satisfy the family and private life requirements of the Immigration Rules must provide cogent evidence of sufficiently compelling exceptional circumstances to justify leave outside the Rules. A rational and anxious assessment of all relevant circumstances will not be unlawful merely because the claimant advances them cumulatively.

The applicant, a Ghanaian national with paranoid schizophrenia, sought judicial review of the Secretary of State’s refusal on 2 June 2015 to treat his further submissions as a fresh human rights claim.

His earlier human-rights appeal had been dismissed by the First-tier Tribunal on 30 March 2012. The tribunal had accepted that he had family and private life in the United Kingdom, but held that removal would not breach articles 3 or 8. The later submissions relied on his medical condition, family support and private life.

Permission for judicial review was initially granted because the applicant was then detained under the Mental Health Act. By the substantive hearing he had been discharged. The central issue was whether the June 2015 decision lawfully concluded that the further submissions did not create a realistic prospect of success before another tribunal.

1. The Upper Tribunal refused the application for judicial review. The basis on which permission had been granted had fallen away because the applicant was no longer detained under the Mental Health Act.

2. The Secretary of State had considered the previous decisions, including the First-tier Tribunal’s findings on family life, private life and the applicant’s limited ties to Ghana. The later submissions added little of material significance. The passage of time did not assist because the applicant could not meet the long-residence or other private-life criteria in paragraph 276ADE(1) of the Immigration Rules.

3. Although the First-tier Tribunal had previously accepted family life between the applicant and his parents, he could not satisfy the family-life requirements in Appendix FM. There was no new evidence establishing dependency, or its extent. The question whether leave should exceptionally be granted outside the Rules depended on the evidence supplied.

4. Dr Fisher’s letter did not establish materially new circumstances. There was no evidential basis for treating its author as qualified to assess the availability of treatment in Ghana, and no independent evidence showed that relevant treatment would be unavailable there. The limited medical evidence could not support an article 8 claim on medical grounds.

5. The Secretary of State had considered the circumstances cumulatively, including the applicant’s history, length and status of residence, and immigration and criminal history. She was entitled to find that they were not sufficiently compelling. Her anxious scrutiny and conclusion that the submissions created no realistic prospect of success before another tribunal were lawful. Permission to appeal to the Court of Appeal was also refused, and the applicant was ordered to pay the respondent’s reasonable costs of £1,973.60.

• Upper Tribunal (Immigration and Asylum Chamber): refused judicial review of the Secretary of State’s decision of 2 June 2015 and refused permission to appeal to the Court of Appeal.
• First-tier Tribunal: dismissed the applicant’s human-rights appeal on 30 March 2012. Permission to appeal to the Upper Tribunal was subsequently refused.