Brenda Efurhievwe represented the Applicant (A) in their application for permission to apply for judicial review of two decisions of the Secretary of State for the Home Department (JR-LON-2025-004558).
A is a vulnerable individual with complex health needs, which have been recognised in immigration detention. In September 2025, while A was in detention, the need to transfer A’s care under s.48 of the Mental Health Act 1983 (MHA) was certified by a Consultant Psychiatrist in a medical report. However, in October 2025 the SSHD discontinued this process for undisclosed reasons. No new report from a mental health specialist appears to have been obtained to contradict the initial certification.
Despite SSHD commencing this attempt to “section” A under the MHA, which is a barrier to removal under s.33 of the UK Borders Act 2007 Act, she set removal directions to the US in November 2025.
Once A secured legal representation, the SSHD was notified of the significance of this aborted s.48 process, alongside other medical evidence of A’s poor health, and the fact that their medico-legal report was underway. A’s solicitors stressed that the Psychiatrist preparing the report was hampered in his attempts to finalise it, due to difficulties accessing A in detention. PAP correspondence also pointed the SSHD to a letter from the Psychiatrist preparing the medico-legal report, which commented on the consequences of A being left with no health care.
The SSHD was also provided with, and received submissions on, a Country Expert report which set out the real risk of A’s removal to the US resulting in street homelessness and a lack of access to medical care. Despite this, the Respondent decided to maintain A’s removal directions and proceed with their imminent removal. Despite the extensive further submissions made by A’s solicitors, the SSHD also reverted with a decision concluding that the representations did not amount to a fresh claim under 353 IR.
Instructing solicitors obtained emergency out of hours interim relief, preventing A’s removal.
Brenda was instructed to prepare the Statement of Facts and Grounds for the initial permission application, on grounds challenging the lawfulness of the decision to maintain removal directions, and the decision that A’s further submissions did not amount to a fresh claim. Judicial review permission was initially refused on the papers.
In the course of the permission hearing Brenda successfully argued that that, in spite of repeated requests by A, in their PAP letter, the SFG and now in the Grounds of Renewal, the Respondent (R) never disclosed why or on what basis the s.48 process was discontinued. Brenda set out the above timeline regarding the s.48 process, which she was able to establish based on the limited records provided by R. She stressed the significance of this bar to deportation under s.33 of the 2007 Act, which the SSHD was bound to consider prior to setting removal directions. Brenda also set out how the failure to consider this existing medical evidence, in conjunction with A’s new evidence, and the preparation of the medico-legal report, amounted to a Tameside error.
In her written submissions Brenda addressed R’s disregard for the risk of A facing treatment contrary to Article 3 ECHR upon their removal to the US, as set out A’s Country Expert report. Contrary to R’s bare assertions to the contrary, the Country Expert was clear that there was a strong likelihood that an individual in A’s particular circumstances would face street homelessness and a lack of access to medical care in the US.
Brenda demonstrated R’s failure to exercise anxious scrutiny while considering A’s further submissions. In her detailed oral submissions on R’s approach to the fresh claim assessment under paragraph 353, Brenda persuaded UT Judge Neville that it was at least arguable that A’s new evidence, taken together with previously considered material, including the s.48 issue, created a realistic prospect of success.
UT Judge Neville found that the s.48 issue was plainly before R, when making the decisions under challenge and concluded that it was unclear that the severity of this matter was appreciated or considered with anxious scrutiny by R. UTJ Neville further recognised that R’s reference to general country information suggesting availability of medical healthcare was insufficient to engage with A’s detailed Country Expert report.
The Judge found that it was arguable both that R’s further submissions decision fell short of the anxious scrutiny required of R, and that there would be realistic prospect of A’s human rights claim succeeding on appeal to the FTT. UTJ Neville granted A permission on all grounds. Brenda was instructed by Darren Middleton and Anna Somo of Duncan Lewis solicitors. Brenda is a member of the Immigration and Public Law team and accepts instructions in cases concerning immigration and asylum, and related public and civil law claims.
Related barristers: Brenda Efurhievwe (Efu-rie-ve)
Related practice areas: Immigration and Public Law
