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

A fresh claim must be assessed in two stages: whether the further material is significantly different, and whether, with the earlier material, it creates a realistic prospect of success before the tribunal. The Secretary of State must examine the material carefully and with anxious scrutiny, but need not accept it uncritically. Earlier adverse credibility findings remain the starting point, subject to genuinely new evidence and changed circumstances.

In medical removal cases, the applicant must first adduce evidence capable of demonstrating substantial grounds for believing that removal would create a real risk of treatment contrary to Article 3. The evidence must address the effect of unavailable or inaccessible treatment. In detention cases, the Hardial Singh principles require a reasonable prospect of removal within a reasonable time and detention reasonable in all the circumstances. The claim was dismissed.

The claimant had remained in the United Kingdom without leave after unsuccessful asylum and human-rights appeals. He challenged decisions refusing further submissions based on his mental health, suicide risk, alleged sexuality and Article 8 private life. He also challenged two periods of immigration detention, lasting 139 and 666 days.

The proceedings had originated in 2013 and had been remitted following permission granted by the Court of Appeal. The court considered whether the later representations constituted a fresh claim under paragraph 353 of the Immigration Rules, whether removal would breach Articles 3 or 8 ECHR, and whether the detention was unlawful under the Hardial Singh principles and the Secretary of State’s detention policy.

1. Fresh claims. Paragraph 353 required the Secretary of State first to identify whether the further material was significantly different, and then to assess whether, taken with the earlier material, it created a realistic prospect of success before the First-tier Tribunal. The review required anxious scrutiny, but not gullibility. The earlier adverse credibility findings remained the starting point under Devaseelan [2002] UKIAT 00702, while later evidence and changed country conditions had to be considered on their merits.
2. The sexuality claim was new, but the Secretary of State was rationally entitled to reject it. The late disclosure, internal inconsistencies and earlier adverse credibility findings meant that no reasonable tribunal had realistic prospects of accepting it. The country evidence also supported the conclusion that discrimination and harassment in Angola did not amount to persecution.
3. The medical evidence did not materially alter the earlier diagnosis or establish a real Article 3 risk. Applying Paposhvili v Belgium [2017] Imm AR 867 and AM (Zimbabwe) v SSHD [2020] UKSC 17, the claimant had to show substantial grounds for believing that removal, without appropriate treatment or support, would cause a substantial reduction in life expectancy or a serious, rapid and irreversible decline resulting in intense suffering. He had not shown the likely effect of withdrawal of treatment or established the required severity.
4. The suicide-risk claim likewise disclosed no realistic prospect of success. The evidence showed an elevated risk, but not a real risk of a completed act of suicide caused by uncontrollable impulses amounting to Article 3 ill-treatment.
5. The Article 8 claim failed. The Secretary of State correctly applied the statutory public-interest considerations and the Immigration Rules. The claimant’s private life had been established while his immigration status was unlawful or precarious, and there were no exceptional or very compelling circumstances outweighing the public interest in deportation.
6. Detention. Applying Hardial Singh [1984] 1 WLR 704 and R (Lumba (WL)) v SSHD [2011] UKSC 12, detention remained lawful where there was a reasonable prospect of removal within a reasonable time and detention remained reasonable in all the circumstances. The claimant’s non-co-operation, absconding history, immigration offence and later destructive conduct were material. The Secretary of State’s expectations were assessed without hindsight. Neither the Hardial Singh principles nor the detention policy was breached.
7. The judicial review claim, including the detention claim, was dismissed.

• Court of Appeal: Permission was granted to reopen the out-of-time application and the claim was remitted to the High Court by consent on 5 April 2018.
• High Court (Administrative Court): The claim was dismissed.