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R (on the application of BN) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The Secretary of State had erred in refusing to treat further representations as amounting to fresh human rights claims. She had failed to discharge her duty under the Borders, Citizenship and Immigration Act 2009 s.55 to consider the need to safeguard and promote the welfare of an asylum seeker’s children in determining the likely impact upon them of her removal.

3 October 2011

The claimant (N) applied for judicial review of three refusals of the defendant secretary of state to treat her further representations as constituting a fresh human rights claim under the Immigration Rules para.353. N, a Malawian citizen, had sent her two children to the United Kingdom to live with her sister. She subsequently entered the UK and unsuccessfully claimed asylum. Her appeal, which included an argument based on the European Convention on Human Rights 1950 art.8, was dismissed; an immigration judge found that she was not the children’s main carer and her removal would not breach either her, or their, art.8 rights. Directions were set for her removal and leave to appeal was refused. In response to United Kingdom Border Agency submissions, the Office of the Children’s Champion (OCC) agreed with N’s proposed removal. N subsequently made three sets of representations to the secretary of state. The first asserted that the secretary of state had failed to consider her du...

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