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URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_11.html
Cite as: [2021] ScotCS CSOH_11, 2021 GWD 5-66, [2021] CSOH 11

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OUTER HOUSE, COURT OF SESSION

[2021] CSOH 11

P373/20

OPINION OF LORD UIST

in the Petition of

AYUSH DHAWAN

Petitioner

for

Judicial Review of a decision by the Secretary of State for the Home Department dated

20 February 2020

Petitioner: Forrest; Drummond Miller LLP

Respondent: MacIver; OAG

29 January 2021

[1]

The petitioner is a national of India who was born on 11 January 1987. He arrived in

the United Kingdom on 25 September 2009 with entry clearance as a Tier-4 General student

until March 2011. He graduated in business management in March 2012. Following

renewals of his visa his leave to remain expired on 31 July 2014. On 12 August 2013 he

applied for further leave to remain on an entrepreneur visa as he had obtained a

qualification in business management. His application was rejected by the respondent and

his appeal to the First-tier Tribunal (Immigration and Asylum chamber) was dismissed as

he did not have sufficient funds. His appeal rights were exhausted on 21 March 2017. On

3 April 2017 he applied for leave to remain on the basis of the family and private life he had

established in the United Kingdom with his uncle and family and the fact that he had

assisted his uncle in running a business. His application was dismissed by the respondent

as clearly unfounded. He raised proceedings in the High Court in London for judicial

review of that decision but withdrew them on 20 February 2020. On 28 November 2019 he

submitted a further application for leave to remain. On 8 January 2020 his solicitors wrote

to the respondent with submissions in support of his application on the basis that he had

continued to develop his family and private life in the UK. On 20 February 2020 the

respondent concluded that the application did not amount to a fresh claim and rejected it.

The petitioner now seeks reduction of that decision.

[2]

In her decision letter dated 30 August 2018 refusing the petitioner's application of

3 April 2017 the respondent stated:

"You state that you are being supported in the UK by your maternal uncle and his
family who provides (sic) food, accommodation and financial contributions.

It is noted that your uncle, in his statement dated 17 May 2018, confirms that he
currently supports you financially and will continue to do so in the future.

After consideration of all the evidence available your claim is hereby certified under
section 94(1) of the Nationality, Immigration and Asylum Act 2002 because the
Secretary of State is not satisfied that it is not clearly unfounded."

[3]

On 28 November 2019 the petitioner submitted an application for further leave to

remain. By letter dated 8 January 2020 his solicitors wrote on his behalf to the respondent.

They asked that his fresh representations should be considered in terms of Article 8 of the

European Convention on Human Rights under the Immigration Rules, failing which

outwith the Rules. They pointed out that he had been resident in the United Kingdom for

more than 10 years and that the copious amount of evidence he had provided showed that

he had without doubt established a very strong private life in the United Kingdom. His

uncle and his family were all British citizens and he had established ties in the United

Kingdom. Accompanying the application were statements from the petitioner and his

uncle. The petitioner stated in his statement that he had completed 10 years stay in the UK

on 25 September 2019 and that he was therefore applying for leave to remain on the basis of

his long residency in the UK. There was no mention by him of any change in circumstances

since the respondent's decision of 30 August 2018 certifying his then application for leave

to remain as clearly unfounded. His uncle, in his statement, stated that the petitioner was

part of his family and he treated him as his son. In her decision letter of 20 February 2020

the respondent stated, so far as relevant:

"Your further submissions raising human rights grounds made on 28 November
2019 have been rejected and (sic) they do not amount to a fresh claim.

You applied for leave to remain on 3 April 2017 and were refused on 30 August 2018.

The further submissions you have made are:

You state that you are currently supported in the UK by your uncle and his
family who are all British citizens.

You claim that you have developed a very strong private life in the UK with
many friends and social ties.

I have considered your further submissions under paragraph 353 of the Immigration
Rules.

All the evidence you submitted has already been considered in a previous decision.

Because you have not provided any new evidence the decision of 14 January 2014
(sic) is maintained and has not changed."

The reference to "14 January 2014" was a mistake: it should have been 30 August 2018.

[4]

The ground of challenge is that the respondent failed to apply the test with regard to

whether further information amounts to a fresh claim. In considering whether there is a

fresh claim based on further information that was not before the original decision maker

the policy of the respondent is to consider whether the fresh information is significantly

different from that placed before the earlier decision maker. Such information is

significantly different only if (i) it has not previously been considered; and (ii) taken along

with previous information there are realistic prospects of success before another

immigration judge (Immigration Rule 353). The test is a modest one: WM (DRC) v

Secretary of State for the Home Department (2007) Imm AR 307. Certainty is not necessary,

and it is crucial that the respondent exercises anxious scrutiny of the facts on which such a

claim is made. In every case the focus is not on whether the respondent thinks the claim

would fail, but on whether there are realistic prospects of success before another

immigration judge. Although it was initially submitted on behalf of the petitioner that the

respondent had erred in her consideration of both limbs of Rule 353 referred to above, it

was ultimately accepted that the only challenge to her decision was that she had erred in

law only under the first limb in that her decision that the material submitted by the

petitioner had already been considered was irrational. No reference was made to the

evidence provided with the letter from the petitioner's solicitors dated 8 January 2020 in the

form of statements from the petitioner and his uncle in relation to the family and private

life established and developed by the petitioner. This was clearly new evidence that was

not before her when she reached her decision dated 30 August 2018 rejecting the

petitioner's human rights claim. In any event she rejected his human rights claim in her

decision of 30 August 2018 largely because she considered at that time that there was no

reason why the petitioner could not return to India.

[5]

In answer the respondent submitted that in deciding that the petitioner had

submitted no new material in terms of Rule 353 she had acted rationally, provided

adequate reasons for her conclusion and did not err in law. She correctly applied the "fresh

claim" test set out in Rule 353 and was entitled to conclude that no new material had been

advanced by the petitioner. The contention by the petitioner that she "has ignored crucial

information submitted to her" was neither adequately specified nor made out as she had

taken into account all of the material submitted to her. The decision under challenge met

the test set in paragraphs 6 and 7 of WM (DRC). At paragraph 6 thereof the Court of

Appeal stated:

"There was broad agreement as to the Secretary of State's task under para 353. He
has to consider the new material together with the old and make two judgments.
First, whether the new material is significantly different from that already submitted,
... that to be judged under para 353(i) according to whether the content of the
material has already been considered. If the material is not `significantly different'
the Secretary of State has to go no further."

There was no basis for the petitioner's argument that she had acted unreasonably in

concluding that the "fresh claim" test had not been made out.

[6]

In my opinion this application to the supervisory jurisdiction of the court is

unstateable. That is obviously why counsel for the petitioner struggled even to attempt to

make an oral submission in support of it. The plain fact of the matter is that it is evident

from a consideration of the relevant documents referred to above that nothing had changed

so far as the petitioner's private and family life is concerned between the respondent's

decision of 30 August 2018 and the application for further leave to remain made by the

petitioner on 28 November 2019. There was nothing irrational in the respondent's

consideration of that application. Not only was she entitled to refuse it: she was bound to

do so. It would have been irrational for her to have allowed it. The application was not a

fresh application: it was simply a repeat of the application made by the petitioner on

3 April 2017, which had been refused by the respondent and certified by her as clearly

unfounded. There was in this case no new material presented for the respondent to

consider, far less new material which was not significantly different from that already

submitted. She was therefore not required to go any further in her consideration of the

application.

[7]

I shall therefore sustain the third plea-in-law for the respondent and refuse the

petition.