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

In reviewing a refusal to treat further representations as a fresh claim, the court applies the Wednesbury standard. The decision-maker must ask whether the new material, taken with material previously considered, creates a realistic prospect of success before an immigration judge, and must reach that view with anxious scrutiny. Paragraph 353 does not generally impose a duty to investigate or trawl through the Home Office’s records. Earlier tribunal findings remain effective until challenged and set aside, and must ordinarily form the starting point for the decision-maker’s reasoning. Country guidance must be applied in the light of current realities. The application for judicial review was refused.

The claimant, an Iraqi Kurdish national, challenged the Secretary of State’s decision of 2 May 2017 that further representations concerning protection, Article 3 medical risk and Article 8 family life did not amount to a fresh claim. He relied particularly on a young child in the United Kingdom, his mental health, the safety of return to Iraq, internal relocation to Baghdad, and access to a Civil Status Identity Document in Kirkuk.

He also argued that an earlier First-tier Tribunal decision concerning a previous deportation exercise was null because the robbery conviction underlying that exercise had later been quashed. The central issues were whether the Secretary of State had applied paragraph 353 lawfully and with anxious scrutiny, whether she had been required to make further enquiries, and whether she had rationally addressed the country guidance.

1. Outcome. The application for judicial review was refused. The Secretary of State’s decision that the further representations were not significantly different and did not create a realistic prospect of success before a First-tier Tribunal was lawful and rational.
2. Fresh-claim test. Under paragraph 353 of the Immigration Rules, the court asks whether the Secretary of State asked the correct question and whether her view was rational. The relevant question is whether the further material, taken with the material previously considered, created a realistic prospect of success before an immigration judge. The decision must be reached with anxious scrutiny.
3. Duty to enquire. Paragraph 353 does not impose a general duty to investigate the claimant’s case or to trawl through extensive Home Office running notes. The duty arising in the exceptional circumstances considered in R (on the application of MA (Pakistan)) v Secretary of State for the Home Department [2016] EWCA Civ 705 arose in a different context and did not apply here. The claimant had supplied no evidence of paternity, the child’s position, or a genuine and subsisting parental relationship. He therefore did not meet paragraph 399, and the material did not establish a realistic prospect of satisfying the unduly harsh requirement.
4. Earlier tribunal decision. An order of a court or tribunal remains effective until challenged and set aside, even if there was no power to make it. The earlier decision therefore stood and had to be taken as the starting point, in accordance with Devaseelan v Secretary of State for the Home Department [2002] UKIAT 000702. The later drugs conviction meant that the public-interest considerations remained material to the new deportation decision.
5. Country guidance and return. The Secretary of State was entitled to apply the general guidance in AA (Article 15(c)) (Rev 1) Iraq CG [2015] UKUT 544 (IAC) and to take account of changed conditions in Kirkuk. Country guidance must give way to present realities where the evidence has materially changed, as recognised in SG (Iraq) v Secretary of State for the Home Department [2012] EWCA Civ 940. The guidance in BA (Returns to Baghdad Iraq CG) [2017] UKUT 18 (IAC) identified risks which were fact-sensitive rather than automatic. The Secretary of State’s assessment of Baghdad relocation and CSID access was not irrational.
6. Other matters. The proposed return to Erbil would have been contrary to policy and unlawful, but the issue was academic because those removal directions were no longer extant. The evidence of mental ill-health was insufficient to affect the fresh-claim assessment. A stay was ordered until the decision on permission to appeal, and the claimant was ordered to pay the defendant’s costs, subject to assessment if not agreed.

This was a first-instance judicial review. The judgment records an earlier First-tier Tribunal decision dismissing the claimant’s appeal against a previous deportation decision, but the present court refused the application for judicial review.