About this case:

• Judgment:
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Dismissing the application for leave to apply for judicial review, Justice Maguire was satisfied that the Home Office had not been unreasonable in the circumstances.

Background

The applicant, Ms Aiying Wu, is a 53-year old Chinese national who was married in China to Mr Shi and has 3 adult children to the marriage who were born in China

In 2009, Ms Wu arrived in the UK on 6 month visitor’s visa to visit her daughter studying in Belfast; but remained as an over stayer following the expiry of her visitor’s visa.

In 2014, Ms Wu was detected working illegally in the UK, and thereafter made two unsuccessful applications for leave to remain.

Further submissions were made in November 2016 after the failure of the two applications. The Home Office accepted that she was in a genuine and subsisting relationship with her husband, but that the further representations did not amount to a fresh claim.

Application for judicial review

In the judicial review proceedings, Ms Wu submitted that the decision of the Home Office in respect of its treatment of her further submissions was unlawful for two primary reasons:

That the Home Office’s treatment of her family ties with persons in the UK was legally wrong.

That the Home Office’s treatment of her and her husband’s Article 8 ECHR rights outside the rules was legally wrong.

Ms Wu argued that:

Her further submissions should have been treated as fresh submissions.

The Home Office should have held that, as a fresh claim, it bore a reasonable prospect of success before an immigration judge.

Hence the claim should have been permitted to go to the Lower Tier Tribunal.

Rule 353

Justice Maguire stated that the relevant rule was Rule 353:

“When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn … and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

Justice Maguire explained that the law in respect of the interpretation of Rule 353 had been the subject of a recent decision; Jahany NIQB 35, which was quoted at length.

Despite the concession that Ms Wu and her husband were in a genuine and subsisting relationship, the Home Office view was that the further submissions did not create a realistic prospect of success before an immigration judge. Hence, it did amount to a fresh claim for the purpose of Rule 353.

Insurmountable obstacles

Ms Wu’s prospects of success before an Immigration Judge are linked to how her case can predictively be judged to fare in the areas of demonstrating that either:

The term “insurmountable obstacles” refers to “very significant difficulties which would be faced by Ms Wu or her partner being able to live together outside the United Kingdom and which could not be overcome or would entail very serious hardship for the applicant or partner”.

The test has been described as imposing “a high hurdle” (see R (Agyarko) and others v Secretary of State for the Home Department EWCA Civ 440).

Furthermore, Justice Maguire stated that it was well established that Article 8 could be considered as imposing on the state a general obligation to respect a married couple’s choice of country for their matrimonial residence or to authorise family reunification on its territory (see Jeunesse v The Netherlands (2015) 60 EHRR 17

The Home Office decision maker did not consider that Ms Wu would have a realistic prospect of success before an immigration tribunal “…in the context of an alleged breach of Article 8 outside the rules, her claim in this regard having been unsuccessful within the rules”.

Refusing the application for leave to apply for judicial review, the court was not persuaded that it was arguable that the decision maker acted unreasonably in arriving at his/her conclusion that Ms Wu’s case did not reach the standard of demonstrating a reasonable prospect of success before an immigration Judge.