FH v Secretary of State for the Home Department

In deciding whether to revoke a deportation order and whether further submissions amount to a fresh claim, the Secretary of State must apply the current legal framework with anxious scrutiny. The realistic prospect of success test is modest, but the decision-maker must ask what an immigration judge would make of the submissions.

Passage of time since offending is not, by itself, a compelling or exceptional circumstance. It becomes relevant where accompanied by evidence of rehabilitation or strengthened private or family life. Where the relevant exceptions to deportation do not apply, bare assertions of rehabilitation and integration do not ordinarily establish a realistic prospect of success.

The claimant, an Iranian national who had lived in the United Kingdom for many years, challenged decisions made in July 2019 refusing to treat further human-rights and protection submissions as a fresh claim under paragraph 353 of the Immigration Rules and refusing to revoke a deportation order. He had been convicted of serious offences and removed to Iran on 1 August 2019.

He argued that the passage of time, rehabilitation, length of residence, family connections and developments in the law created a realistic prospect of success before an immigration judge. The central issues were whether the Secretary of State had applied the revocation and fresh-claim tests lawfully and whether the decisions were unreasonable.

1. Application refused. The challenges to the decisions not to revoke the deportation order and not to accept a fresh claim failed.
2. Under paragraphs 390 and 390A of the Immigration Rules, the Secretary of State must consider all relevant circumstances. Where paragraph 398 applies and paragraphs 399 and 399A do not, the public interest in maintaining deportation will be outweighed only by exceptional or very compelling circumstances.
3. The paragraph 353 test requires consideration of whether the further submissions are significantly different because their content was not previously considered and, taken with the earlier material, creates a realistic prospect of success before an immigration judge. The test is modest, but the Secretary of State must apply anxious scrutiny, ask the correct question and reach a decision that is not Wednesbury unreasonable.
4. The 2008 tribunal determination was the proper starting point under Devaseelan v SSHD [2002] UKIAT 00702. Earlier consideration by the Secretary of State was also relevant context, and the decision-maker could incorporate earlier reasons where they remained relevant.
5. Passage of time since the offences or deportation order was not, without more, a material compelling or exceptional circumstance. It may matter where there is evidence of rehabilitation or strengthened private or family life. The claimant’s evidence consisted mainly of bare assertions and did not materially alter the public-interest balance. His unlawful residence also reduced the weight of private life under section 117B(4) of the 2002 Act.
6. Paragraph 391 could not be applied by analogy because it concerned the continuation of a deportation order after deportation. In any event, passage of time alone could not constitute a compelling reason for early revocation. The Secretary of State was therefore entitled to refuse both applications.

First-instance judicial review proceedings. No earlier appellate decision in this litigation is stated in the judgment.