Senkoy, R (on the application of) v Secretary of State for the Home Department

In reviewing a decision under paragraph 346 of the Immigration Rules, the Secretary of State must consider significant, credible and previously unavailable evidence in its proper context. Evidence need not relate specifically to the individual applicant if it concerns persons sharing sufficiently significant characteristics. A decision rejecting such evidence merely because it is general, and failing to consider its relationship with material relied on in the earlier appeal, may be irrational in the Wednesbury sense. The court did not finally determine whether fresh evidence concerning an unchanged element of an asylum claim can itself constitute a fresh claim, although Lord Justice Peter Gibson preferred that approach.

Ali Senkoy, a Turkish Kurd whose asylum claim had been rejected by the Immigration Appeal Tribunal, submitted further evidence shortly before his proposed removal. The evidence concerned the risk of torture to Kurdish failed asylum-seekers returned to Turkey and challenged material on which the Tribunal had relied.

The Secretary of State declined to treat the representations as a fresh claim under paragraph 346 of the Immigration Rules, principally because the information was general and was not specifically related to Mr Senkoy. Maurice Kay J quashed that decision on judicial review. The Secretary of State appealed. The central issues were the proper scope of review and whether the decision failed to take account of material evidence and its relationship with the earlier decision.

1. Appeal dismissed. The decision under paragraph 346 was reviewable on ordinary Wednesbury principles. The court was not entitled to decide for itself whether the representations constituted a fresh claim.
2. The Secretary of State’s stated reason was irrational. Evidence about the treatment of returning asylum-seekers would ordinarily be general. The relevant question was whether it concerned persons with sufficiently significant common characteristics to provide a reliable indication of the treatment the applicant might face. The evidence here concerned Kurdish returnees and therefore plainly applied to Mr Senkoy, who was a Kurdish failed asylum-seeker with a history of detention and torture.
3. The Secretary of State also failed to consider the material relationship between the new report and the evidence relied on by the Tribunal. The new report appeared to undermine the Tribunal’s conclusion that the risk on arrival was limited to interrogation, insult, threats and humiliation. That omission was a material failure to take account of relevant evidence.
4. Lord Justice Peter Gibson expressed the view, obiter, that significant, credible and previously unavailable evidence supporting an unchanged element of an asylum claim may satisfy the fresh-claim test if it creates a realistic prospect of success. Lord Justice Chadwick was not satisfied that the question should be resolved obiter, and Lord Justice Keene expressed a similar qualification, although he was inclined towards the approach in Boybeyi and Ravichandran (No. 2).
5. The order quashing the Secretary of State’s decision was upheld. The appeal was dismissed with costs, subject to detailed assessment.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal from the order of Maurice Kay J quashing the refusal to treat the further representations as a fresh asylum claim.
• High Court, Queen’s Bench Division: Maurice Kay J allowed the application for judicial review and quashed the decision under paragraph 346 of the Immigration Rules.