Veysel Erturk for Judicial Review of a decision by the Secretary of State for the Home Department (Court of Session)

Factual and Procedural Background

The Petitioner, a 23-year-old man of Turkish nationality who entered the UK in 2011 as a family member of an EEA national, was convicted in 2017 of six offences and sentenced to custody. After serving his sentence, the Secretary of State for the Home Department decided to deport him in 2018. The Petitioner opposed deportation, citing family life rights under Article 8 of the European Convention on Human Rights. There was a prolonged immigration history involving multiple tribunal proceedings and judicial reviews.

Key events include the initial deportation decision in June 2018, submissions made on the Petitioner’s behalf relying on family life rights, a reconsideration and reaffirmation of the deportation order in April 2021, and unsuccessful appeals at both the First-tier and Upper Tribunals. In November 2022, the Petitioner entered into an arranged Islamic marriage with a Lithuanian national and lived with her in the UK. The wife returned to Lithuania in late 2023, where she gave birth to a daughter in January 2024, whom the Petitioner has not met. Removal directions were issued in February 2024 but cancelled to consider further representations based on family life. The Secretary of State ultimately rejected these further submissions in September 2024, declining to revoke the deportation order.

Legal Issues Presented

1. Whether the Secretary of State erred in concluding that there was no right of appeal to the First-tier Tribunal against the decision of 9 September 2024 rejecting further human rights submissions.
2. Whether the Secretary of State erred in finding that there were no realistic prospects of success for the Petitioner’s human rights claim before an immigration judge, thereby justifying rejection of the fresh claim.

Arguments of the Parties

Appellant's Arguments

• The representations made on 22 February 2024 amounted to a fresh human rights claim, entitling the Petitioner to a right of appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002.
• The Secretary of State was factually incorrect in stating the Petitioner was not in a relationship with a partner in the UK and that the wife had been living in Lithuania since 2022.
• The Petitioner’s arranged marriage and subsequent family life, including a child born in Lithuania, constituted significantly different circumstances from earlier claims, creating realistic prospects of success before an immigration judge.

Respondent's Arguments

• The Petitioner had already made a human rights claim in 2018 which was rejected and upheld on appeal; thus, the 2024 submissions did not amount to a fresh claim under paragraph 353 of the Immigration Rules.
• Because the fresh claim test was not met, no right of appeal arose under section 82 of the 2002 Act.
• The Petitioner’s wife and child reside outside the UK, and their status does not require the Petitioner to remain in the UK under Article 8.
• The Secretary of State’s decision was neither factually erroneous nor irrational.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the legal framework governing human rights claims and appeal rights, focusing on section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 and paragraph 353 of the Immigration Rules. It relied heavily on the Supreme Court’s decision in Robinson, which clarified that where a human rights claim has already been refused and no appeal is pending, further submissions must be accepted as a fresh claim under paragraph 353 to trigger a right of appeal.

Applying this principle, the court found that the Petitioner’s initial human rights claim was rejected in 2021 and upheld on appeal. The 2024 submissions were therefore subject to the fresh claim test under paragraph 353. The Secretary of State correctly concluded that these submissions did not amount to a fresh claim, as they did not create a realistic prospect of success when considered with earlier material.

The court addressed the factual dispute over the wife’s residence, finding the Secretary of State’s reference to the wife living in Lithuania since 2022 was a typographical error but did not affect the substantive conclusion. The wife’s presence outside the UK, the Petitioner’s lack of contact with his child, and the timing of the marriage (entered knowing deportation risk) meant the new submissions did not significantly alter the human rights claim.

Consequently, the Secretary of State’s rejection of the fresh claim and denial of a right of appeal were lawful. The court further found no material error or irrationality in the Secretary of State’s assessment that there were no realistic prospects of success before an immigration judge.

Holding and Implications

The court’s final decision was to REFUSE the petition for judicial review.

The direct effect is that the Secretary of State’s decision to reject the further human rights submissions and to deny the Petitioner a right of appeal stands. The Petitioner’s only remedy for challenging the Secretary of State’s rejection of the fresh claim remains judicial review, which was unsuccessful. No new precedent was established by this decision.