MG, R (On the Application Of) v The Secretary of State for the Home Department

Under paragraph 353 of the Immigration Rules, further submissions must be assessed together with previously considered material. The question is whether they create a realistic prospect of success before an independent tribunal applying anxious scrutiny. A decision is unlawful where the Secretary of State asks the wrong question, fails to assess the evidence in the round, or fails to give proper weight to materially new evidence. In an Article 8 deportation case, the child’s best interests and the evidence concerning a genuine and subsisting parental relationship must be properly assessed against the statutory public interest in deportation. A fresh protection claim may nevertheless rationally be rejected where the new medical evidence is materially limited and does not overcome the existing evidence and findings. Continued immigration detention remains lawful where the relevant policy is correctly applied and removal remains reasonably foreseeable.

The claimant, a Namibian national liable to deportation following criminal convictions, challenged the refusal of further submissions concerning her relationship with her UK-based daughter and her alleged risk of re-trafficking in Namibia. She also challenged her detention from 11 February 2015 until her release on 9 May 2017, relying on a Rule 35 report, a later psychiatric report and the Hardial Singh principles.

The court considered whether the further submissions amounted to fresh claims under paragraph 353 of the Immigration Rules, whether the detention policy had been correctly applied, and whether detention remained lawful.

1. Family-life fresh claim. The refusals dated 6 and 18 April 2016 were Wednesbury unreasonable. The new evidence from the claimant’s former partner and daughter was not before the First-tier Tribunal and materially addressed whether a genuine and subsisting relationship existed. The Secretary of State accepted evidence of a relationship but continued to rely on the earlier finding that no such relationship had been established.
2. The Secretary of State focused excessively on the quantity of direct contact rather than the depth of the relationship. She did not clearly assess the changed position of the claimant’s former partner, the daughter’s own evidence, the admitted negative emotional impact of deportation, or the daughter’s free-standing interests under Article 24(3) of the EU Charter. The decision did not demonstrate anxious scrutiny of whether it would be unduly harsh for the child to remain in the UK without her mother. The decisions were quashed and the material was remitted for reconsideration.
3. Fresh protection claim. The refusal of the claim based on alleged risk of re-trafficking was lawful. The Competent Authority had made a detailed negative decision after considering Professor Katona’s report. That report relied principally on the claimant’s account, had not considered medical records, contrasted with earlier psychiatric reports, and was affected by unresolved credibility issues and the failure to provide unredacted interview notes. The Secretary of State was entitled to assess it with the previous evidence and to conclude that there was no realistic prospect of success before an Immigration Judge.
4. Detention. The Secretary of State lawfully concluded that the Rule 35 report did not constitute independent evidence of torture for the purposes of the detention policy. It raised a concern but contained limited reasoning and support, and the claimant’s previous asylum claim had addressed similar allegations. Professor Katona’s report did not demonstrate serious mental illness incapable of satisfactory management in detention. The Secretary of State was entitled to prefer the existing tribunal and medical findings.
5. The Hardial Singh challenge failed. The claimant remained removable within a reasonable period, was assessed as presenting high risks of absconding and harm to the public, and the length of detention was substantially affected by repeated further claims. The Secretary of State discharged the burden of proving that detention after 11 February 2015 was lawful.

First-instance judicial review in the Administrative Court. The claim was transferred from the Upper Tribunal because it included a challenge to the lawfulness of detention. Permission was granted on both grounds, but the substantive claim succeeded only in relation to the family-life fresh claim.