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

A further submission constitutes a fresh claim under paragraph 353 of the Immigration Rules where it contains material not previously considered and, taken with the existing evidence, creates a realistic prospect of success. A child born after the earlier decision must be considered as an individual, including under paragraph 399(a) and section 55 of the Borders, Citizenship and Immigration Act 2009.

In assessing whether the “unduly harsh” threshold is met, all relevant circumstances must be considered, including the child’s relationship with the deportee, the child’s nationality, the family’s practical options, the deportee’s immigration history and whether removal would in reality amount to exile. Detention for removal is unlawful where the belief that removal is reasonably imminent ignores material barriers and relevant family circumstances.

The claimant, a Nigerian national, had been sentenced to three years’ imprisonment and was subject to a deportation order. His appeal had previously been dismissed by the Upper Tribunal. After the birth of his daughter, he made further submissions relying on his relationship with her, family circumstances, mental-health evidence and positive conduct.

The Secretary of State decided that the submissions did not amount to a fresh claim. The claimant also challenged his detention from 22 June to 19 July 2016. The issues were whether the daughter’s position had already been considered, whether there was a realistic prospect of success before the First-tier Tribunal, and whether detention complied with the Hardial Singh principles.

1. Fresh claim. The test under paragraph 353 of the Immigration Rules was whether the further submissions contained material not previously considered and, taken with the earlier material, created a realistic prospect of success. The test was described in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 as modest.
2. The Secretary of State’s conclusion that HA’s human-rights position and best interests had already been considered was manifestly unlawful and irrational. HA had been unborn when the First-tier Tribunal considered the earlier appeal. Neither tribunal had considered her Article 8 rights, her best interests, her relationship with the claimant, or paragraph 399(a) as it applied to her.
3. There was a realistic prospect that an Immigration Judge would find it unduly harsh to rupture the relationship between HA and an active parent. Modern communications could not realistically preserve the family life of a small child and an active parent, applying Omotunde v Secretary of State for the Home Department [2011] UKUT 00247 (IAC).
4. The assessment had also failed to confront the practical reality that HA’s mother could not simply abandon another British child in order to move to Nigeria. It failed to give weight to HA’s nationality and the importance of growing up in her own country, as required by ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166. All circumstances relevant to undue harshness had to be considered, including the claimant’s long residence from childhood, social and cultural integration, and the possibility that removal would amount to exile, applying HK (Turkey) [2010] EWCA Civ 583 and MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 617.
5. The supplementary letter was admitted. Depending on its contents, it was either a fresh decision responding to new material or a further decision filling the gap arising from the original decision. The claim for judicial review was allowed, giving the claimant a right of appeal to the First-tier Tribunal.
6. Detention. The detention decision materially misstated the claimant’s family and immigration circumstances and failed to account for the absence of an emergency travel document, the unserved fresh-claim decision, Nigerian removal requirements, the claimant’s long residence and the weak evidence that removal was reasonably imminent. Detention from 22 June to 19 July 2016 was therefore unlawful.