Petition of A B and C for Judicial Review (Court of Session)

Factual and Procedural Background

The Petitioners, comprising two parents and their child, sought judicial review of the Secretary of State for the Home Department's decision that their further submissions did not amount to a fresh claim for permission to remain in the United Kingdom. The mother originally claimed asylum in 2018 based on a fear of forced female genital mutilation, with the father and child as dependants. The asylum claim was refused, and subsequent appeals were unsuccessful. Further submissions were made in 2020 and 2022, which the Secretary of State determined did not constitute a fresh claim. A formal application to regularise their stay was made in October 2022, incorporating these further submissions, including medical and educational information about the child. The applications were refused in October 2023 through separate decision letters, each concluding that the submissions did not amount to a fresh claim.

Legal Issues Presented

1. Whether the further submissions made by the Petitioners amounted to a fresh claim for permission to remain in the United Kingdom.
2. Whether the decision-maker applied the correct legal tests distinctly when deciding whether to grant leave to remain and whether the submissions constituted a fresh claim.
3. Whether the reasons provided in the decision letters were adequate to explain the basis for refusing the fresh claim status and leave to remain.

Arguments of the Parties

Petitioners' Arguments

• The Petitioners contended that the decision conflated the distinct legal tests for granting leave to remain and for determining a fresh claim, and the decision letters failed to separately consider the fresh claim test.
• It was argued that the decision letter for the second petitioner irrationally stated that no new material had been presented, despite acceptance of new material for the first and third petitioners, all based on the same information.
• The Petitioners submitted that failure to consider additional material with anxious scrutiny was an error, and the possibility that a different decision might have been reached was sufficient to challenge the refusal.
• They argued the decision letters did not properly assess whether the new material gave rise to a realistic prospect of success before an immigration judge, only addressing the leave to remain issue.
• For the third petitioner, it was submitted that the decision recognized new material but failed to apply the correct, lower threshold test for a fresh claim, lacking any reasoning to support the conclusion.
• Similarly, for the first petitioner, the conflation of tests and absence of reasoning regarding reasonable prospects before an immigration judge was challenged, with errors in the decisions relating to the other petitioners also applying.
• The Petitioners argued that references to paragraph 353B of the Immigration Rules were incorrect, the relevant test being in paragraph 353, and that the correct test was not applied.

Respondent's Arguments

• The Respondent acknowledged new material was submitted, primarily concerning the child, but described it as slight and insufficient to create a realistic prospect of success.
• It was submitted that a single decision-maker issued one decision applied to all three petitioners, with separate letters, and that the decision letters demonstrated awareness and application of the two distinct tests.
• The Respondent rejected the claim of conflation and the suggestion that the references to the fresh claim test were a "token gesture," asserting that the decision-maker properly considered the issues.
• The decisions were to be considered collectively, with prior consideration of submissions relating to Article 8 of the European Convention on Human Rights, and the court should not substitute its own view on materiality.
• The Respondent argued that the new material related only to the third petitioner and that its rejection there logically extended to the parents, as the material had no independent relevance to their claims.
• It was submitted that considering realistic prospects of success necessarily involves some consideration of the merits, and the decision-maker was entitled to approach the matter as done without prejudicing the Petitioners.
• Regarding references to paragraph 353B of the Immigration Rules, the Respondent contended that the context showed the correct issue was identified and considered.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by identifying the necessity to apply two distinct legal tests: one for granting leave to remain and another for determining whether further submissions constitute a fresh claim, the latter requiring a lower threshold of a realistic prospect of success before an immigration judge. The court noted that the decision letters correctly stated the tests but failed to adequately explain how the fresh claim test was applied, especially in the letter concerning the third petitioner, where no reasoning was provided on this point.

The court referred to established authorities emphasizing that reasons must be intelligible and adequate to enable understanding of how conclusions were reached. The absence of reasoning on the fresh claim issue meant the decision letters did not fulfill this function, leaving the court unable to ascertain the basis for the conclusions reached. The court rejected the Respondent’s invitation to infer or speculate about the decision-maker’s reasoning.

Although the decision letters referred incorrectly to paragraph 353B of the Immigration Rules, the court accepted that the correct test for fresh claims was in the decision-maker’s mind. However, the conflation of the more stringent leave to remain test with the fresh claim test and the lack of explanation on the latter undermined the lawfulness of the decisions.

The court acknowledged that if adequate reasons had been provided in relation to the third petitioner, the errors in the decisions concerning the other petitioners might have been immaterial, as the new material related solely to the child. However, given the absence of such reasons, the decisions could not stand.

Holding and Implications

The court held that the decision letters failed to provide adequate reasons regarding whether the further submissions amounted to a fresh claim, rendering the decisions unlawful. Consequently, the decisions contained in the letters refusing leave to remain and denying fresh claim status were REDUCED.

The direct effect of this ruling is that the Petitioners’ applications require reconsideration with proper reasoning on the fresh claim issue. The court did not establish any new legal precedent but reinforced the established principles concerning the adequacy of reasons and the distinct application of legal tests in immigration decisions.