R (WJ) (China) v. Secretary of State for the Home Department [2010] EWHC 776 (Admin)

In this case, the Claimant sought judicial review of the Secretary of State's decision that her further representations against removal from the UK did not amount to a 'fresh claim' for the purposes of paragraph 353 of the Immigration Rules, and did not generate an in-country right of appeal. The Claimant was a Chinese citizen who had entered the UK clandestinely and remained illegally. Her further representations to the Secretary of State stated that she had entered a relationship with a self-employed British citizen and that it would be a disproportionate interference with their right to respect for family life under Article 8 ECHR to expect him to give up his business in the UK and relocate with her to China. The Claimant submitted, first, that unless and until her Article 8 claim were certified as 'clearly unfounded' under s.94 of the Nationality, Immigration and Asylum Act 2002, she had an in-countr right of appeal; and secondly, that in any event the Secretary of State ought to have recognised her representations as amounting to a 'fresh claim' since they had a realistic prospect of success before a Tribunal. Following a rolled-up hearing of the permission application and the substantive judicial review claim, Beatson J gave an extempore judgment finding for the Claimant on the first of the above grounds. Subsequently, however, and before finalising his Order, he indicated that on further reflection he considered his original judgment to be mistaken and that the claim should fail on both grounds. He therefore invited further submissions as to whether he had power to recall his earlier judgment. Having heard argument on this point at a second hearing, Beatson J held that he did have such power and gave judgment for the Secretary of State on both grounds. Beatson J's final judgment also contains some important observations on rolled-up hearings in judical review proceedings. The Secretary of State was represented by Charles Banner at the first hearing and David Blundell at the second hearing, instructed by the Treasury Solicitors.