12 July, 2019
AS (India) v Home Office  CSOH 43
Case comment by Michael Way, Advocate
Lady Wise allows immigration ‘fresh claim’ judicial review
The petitioner was a national of the India. He sought judicial review of the Home Office’s decision to refuse to accept his further submission as a fresh claim, under Immigration Rule 353.
The petitioner had entered the UK as a visitor in 2006 and overstayed. He formed a relationship with a British national in 2010 and they would go on to marry in 2013. After their marriage, the petitioner applied to regularise his immigration status on the basis of this relationship. This application was refused and an appeal to the First-tier Tribunal was unsuccessful. The petitioner then made further submissions to the Home Office in August 2017, which were swiftly rejected.
This case concerned further submissions made in October 2017. The Home Office again swiftly rejected the submissions. What set these further submissions apart were that they included an expert report from an Indian advocate (“Expert Report”), as well as references to the Home Office’s Country Information and Guidance on India (“Country Guidance”), highlighting issues of gender discrimination and violence that women can face.
The petitioner’s central contention was that given his wife’s health and work status, alongside the difficulties obtaining a visa and other cultural difficulties, there would be insurmountable obstacles for them to have to move to India as a couple. The Home Office refusal letter had failed to even acknowledge the Expert Report and made only scant reference to the Country Guidance. This was said to be a material error. The petitioner contended that there had been a failure to consider the further submissions with the requisite “anxious scrutiny”.
The respondent’s position was that any failure to properly demonstrate consideration of the Expert Report and the Country Guidance was not a material error. It was not an error to fail to demonstrate consideration of material that would not have been created a realistic prospect in front of an immigration judge. The respondent contended that there was nothing in the new material that would have led to a different conclusion.
The questions for the Court were therefore:
- Was there a failure by the Home Office to substantively consider the Petitioner’s further submissions?
- If yes, would the outcome in front of a hypothetical Immigration judge have inevitably been the same?
Lady Wise allowed the petition and reduced the Home Office’s decision (at ). Her ladyship concluded that the failure to give any proper consideration to the new documentation was a material error.
The respondent had, quite fairly, conceded that there was nothing to demonstrate that the Home Office had given substantive consideration to the new documents. The error was, in effect, conceded. On the question of materiality, Lady Wise was satisfied, however, that had the documents been properly scrutinised that “the outcome may not have been the same on the issue of insurmountable obstacles” (at ). The error was, therefore, material.
This was because the Expert Report would have been admissible evidence in the Tribunal and could not be dismissed as “simply implausible” (at ). The Expert was qualified to give his opinion on visa and social welfare requirements in India. Moreover, his comments on the treatment of women in Indian society largely echoed the Country Guidance. An Immigration judge would have required to give this all careful consideration – in particular the Home Office’s own Country Guidance (at ).
The respondent further argued that, even if the Expert report could be accepted and it would not be possible for the petitioner’s wife to go with him to India, the decision letter had considered the article 8 implications of the petitioner being removed and his wife remaining. The petitioner accepted that he would have to demonstrate “exceptional circumstances” for an article 8 claim to succeed in those circumstances. Lady Wise, however, did not consider that that there was “any discernible conclusion” on the proportionality of such an option and she could not be satisfied that an article 8 claim would necessarily fail (at ). However, given the conclusion at  it was not necessary to reach “any definitive conclusion on this point” (at ).
This is a not atypical example about how the Court will deal with a judicial review following a refusal of further submissions under Immigration Rule 353. The requirement for “anxious scrutiny” means that there is generally scope of a petitioner to argue that, when the Home Office has rejected their claim, they have not had the benefit of the requisite standard of decision-making care.
Where, on the face of the decision, there has been a failure to consider potentially relevant material, as in this case, all the respondent can sensibly argue is that the error was immaterial. In the circumstances, Lady Wise appeared to be content to give the benefit of the doubt to the petitioner.
Ampersand’s Graham Maciver appeared for the respondent.