AS (AP) FOR JUDICIAL REVIEW OF A DECISION OF THE HOME OFFICE [2019] ScotCS CSOH_43 (12 June 2019)

AS (AP) FOR JUDICIAL REVIEW OF A DECISION OF THE HOME OFFICE [2019] ScotCS CSOH_43 (12 June 2019)

The respondent's failure to give substantive consideration to the new evidence (Country Guidance Report and Mr Puri's report) was a material error, as proper scrutiny could have led to a different outcome on the insurmountable obstacles test, thus the decision refusing to treat the further submissions as a fresh claim must be reduced.

Citation
[2019] ScotCS CSOH_43
Parties
Petitioner: AS (AP); Respondent: Home Office
Jurisdiction
Scotland
Judgment Date
12 June 2019
Procedural Posture
Judicial Review / Final Judgment
Outcome
petition granted
Legal Topics
Fresh Claim, Insurmountable Obstacles, Article 8 ECHR, Proportionality, Entry Clearance, Anxious Scrutiny
Immigration Human Rights Fresh Claim Insurmountable Obstacles Article 8 ECHR Proportionality Entry Clearance Anxious Scrutiny

Case Brief

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Parties

AS (AP)

Petitioner

Home Office

Respondent

Procedural Posture

Judicial Review / Final Judgment

Legal Issues

  1. 1 Whether the respondent's failure to consider new evidence constituted a material error
  2. 2 Whether the new submissions amounted to a fresh claim under Immigration Rule 353
  3. 3 Whether there were insurmountable obstacles to family life continuing in India

Ratio Decidendi

The respondent's failure to give substantive consideration to the new evidence (Country Guidance Report and Mr Puri's report) was a material error, as proper scrutiny could have led to a different outcome on the insurmountable obstacles test, thus the decision refusing to treat the further submissions as a fresh claim must be reduced.

Court Disposition

petition granted

Orders

  • Decision of 13 October 2017 refusing to treat further submissions as a fresh claim is reduced.
  • All questions of expenses reserved.