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

In immigration and Article 8 decision-making, procedural fairness requires effective participation in the process as a whole. The affected person must have a fair opportunity to know and answer adverse matters relied upon by the decision-maker.

Under paragraph 353 of the Immigration Rules, a fresh claim threshold is crossed where the further submissions create more than a fanciful prospect of success before an adjudicator applying anxious scrutiny. The Secretary of State must undertake a careful and properly informed assessment of all relevant evidence.

Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the child’s best interests to be identified first and treated as a primary consideration. Detention becomes unlawful when its justification, including an established risk of absconding, no longer exists.

The claimants challenged the refusal of further human rights submissions made by AT, a Gambian national removed to The Gambia. AT relied on his proxy marriage to FF, who had indefinite leave to remain in the United Kingdom, and on his relationship with their British child, BT.

The Secretary of State treated the submissions as not significantly different from material previously considered and concluded that they had no realistic prospect of success. The claimants alleged procedural unfairness, failure to apply anxious scrutiny, breach of the duty concerning BT’s welfare, unlawful removal and unlawful detention.

The central issues were whether the decision letter lawfully assessed the new family evidence and whether AT’s continued detention remained justified.

1. Decision letter and removal. The claim succeeded. The Secretary of State’s decision was fundamentally flawed and AT’s removal, based upon that decision, was unlawful.
2. Fresh claim. Paragraph 353 required consideration of whether the new material created a realistic prospect of success before an Immigration Judge applying anxious scrutiny. That is a modest threshold, meaning more than a fanciful prospect. The Secretary of State wrongly stated that the material was not significantly different, although the evidence concerning the marriage, family life, pregnancy and child had not previously been considered. The conclusion that the claim could not succeed was one that a reasonable decision-maker could not reach on the material available.
3. Procedural fairness. The decision-maker relied on doubts about the genuineness of the relationship, alleged statements that AT lived elsewhere, and the absence of further evidence without giving AT a proper opportunity to address those concerns. Fairness required meaningful involvement in the decision-making process and, where necessary, further enquiry.
4. Section 55. The Secretary of State had to be properly informed and conduct a scrupulous analysis of BT’s circumstances. BT’s best interests had to be identified first and treated as a primary consideration. The assertion that those interests had been considered was contradicted by the cursory treatment of BT’s nationality, residence, relationship with AT and the effects of separation.
5. Detention. Applying the Hardial Singh principles, detention was initially justified by the imminent removal and later by the perceived risk of absconding. Once AT had supplied and the Secretary of State had considered evidence of his wife and child, that justification ceased. Detention was unlawful from 10 November 2016 until removal.
6. The claimants were entitled to a declaration and an order requiring the Secretary of State to use her best endeavours to return AT to the United Kingdom so that his human rights appeal could be considered. Directions were to be given concerning damages.

Not stated in the judgment.