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

Under paragraph 353 of the Immigration Rules, further submissions constitute a fresh claim where they are significantly different and, taken with earlier material, create a realistic prospect of success before an immigration judge. The Secretary of State must apply anxious scrutiny and ask that question, rather than decide the underlying claim afresh or substitute her own view for that of the hypothetical tribunal.

Relevant expert evidence must be considered rationally. The risk factors relied on must also be assessed cumulatively where the case depends on their combined effect. Immigration detention remains lawful where removal has a realistic prospect within a reasonable period and the relevant Hardial Singh factors justify continued detention. A medical condition which is self-generated by refusal of treatment may fall outside a policy protecting persons whose serious conditions cannot be satisfactorily managed in detention.

The claimant, a Sri Lankan Tamil national, challenged the Secretary of State’s refusal to treat further asylum and human-rights submissions as a fresh claim. The submissions relied on his criminal convictions, an alleged LTTE-related tattoo, attendance at demonstrations, past detention in Sri Lanka and expert country evidence.

He also challenged his detention from 13 July 2012 to 2 March 2013, alleging breaches of the Hardial Singh principles and the Secretary of State’s published detention policy. The court had to decide whether the fresh-claim decision was irrational or insufficiently scrutinised and whether the detention was unlawful.

1. Fresh claim. The decision of 10 November 2015 replaced the earlier decision and was the decision requiring review. Paragraph 353 required the Secretary of State first to consider whether the further submissions justified granting leave and then whether, despite rejection, they created a realistic prospect of success before an immigration judge.
2. Applying WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the Secretary of State’s decision was reviewable on Wednesbury grounds. The question was whether the correct test had been asked and applied with anxious scrutiny. The threshold was modest. The Secretary of State was not required to accept expert evidence at its highest, but could not disregard relevant expert evidence merely because it was opinion.
3. The treatment of the credit-card-fraud evidence was defective. The Secretary of State treated the issue as confined to credit-card fraud and substituted her own assessment of the evidence, rather than asking whether an immigration judge might take a different view. The conclusion that the Sri Lankan authorities would not know of the convictions did not demonstrate anxious scrutiny in light of the country guidance’s reference to sophisticated intelligence.
4. The tattoo evidence was also inadequately addressed. Although the country guidance supported the conclusion that the tattoo alone created no realistic prospect of success, the Secretary of State gave no proper conclusion on the tattoo as an individual risk factor and rejected the expert’s opinion simply because it was opinion.
5. The cumulative assessment was unlawful. The decision considered the factors separately and failed to ask whether, taken together, they created a realistic prospect that the claimant would be perceived as a threat to the integrity of Sri Lanka. It also omitted the perception element of the country guidance. The fresh-claim decision was therefore unlawful.
6. Detention. The second and third Hardial Singh principles required detention to last no longer than reasonable in all the circumstances and required a realistic prospect of removal within a reasonable period. Applying Lumba v Secretary of State for the Home Department [2012] 1 AC 245, the court considered the length of detention, obstacles to removal, diligence, the effect of detention, absconding risk and risk to the public. The claimant’s criminal record, non-compliance with reporting, use of aliases, weak appeal, and manipulative refusal of treatment supported a significant risk of absconding and public harm. Detention was reasonable.
7. The detention policy did not render detention unlawful. Under Chapter 55.10 of the Enforcement Instructions and Guidance, persons with serious medical conditions that could not be satisfactorily managed in detention were normally detained only in very exceptional circumstances. Following IM (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1561, the policy did not cover a case in which the relevant medical deterioration was self-generated by refusal of treatment. In any event, the condition could be managed in detention and exceptional circumstances existed.
8. One irrelevant reference to the Secretary of State’s duty of care did not invalidate the detention decision because the remaining reasons independently justified it. The detention reviews were probably carried out. The claim succeeded on the fresh-claim decision but failed on unlawful detention.

First-instance judicial review proceedings in the Administrative Court. The court declared the Secretary of State’s decision of 10 November 2015 unlawful, but rejected the challenge to detention. Further submissions on remedy and disposal were reserved.