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

Further representations will found a fresh asylum or human-rights claim only where the new material is sufficiently significant and credible to create a realistic prospect of a different outcome. Its apparent authenticity is not decisive. The decision-maker may assess provenance, the circumstances in which the material was obtained, unexplained delay, and its relationship to findings already made.

Where earlier findings exclude a Refugee Convention claim, evidence concerning military-service exemption may be relevant only to an Article 3 claim. A document showing that medical grounds were considered but rejected does not, without more, establish persecution or inhuman or degrading treatment. Delay in disclosing significant evidence and delay in challenging the reconsidered decision may justify certification and refusal to extend time.

The claimant, a Ukrainian national, sought judicial review of a reconsidered decision by the Secretary of State refusing to treat a military document as the basis of a fresh claim. His earlier asylum appeal had failed, and permission to appeal had been refused. The document, received by his solicitors after that refusal, stated that a medical request for exemption from military service was insufficient and warned of further action if he failed to report.

The document was not disclosed during the first judicial-review proceedings. After those proceedings, the Secretary of State reconsidered the matter, rejected the fresh claim, and certified it under section 73(8) of the Immigration and Asylum Act. The central issues were whether time should be extended and whether the reconsidered decision and certificate were unlawful.

1. Application refused. The court declined to extend time to challenge the Secretary of State’s decision of 31 October 2002. The challenge would in any event have failed.
2. The reconsidered letter was a fresh determination, rather than a mere repetition of the earlier decision. The claimant nevertheless delayed more than three months before challenging it, and there was no sensible explanation for that delay.
3. The claimant’s earlier findings, which were not themselves in issue, provided no basis for a Refugee Convention claim. There was no accepted conscientious objection to military service, and the punishment for draft evasion was not persecutory. The new document did not show that the claimant was a fugitive or wanted for escaping arrest, or that he would suffer persecution.
4. The document could potentially affect only the Article 3 claim. It showed that the Ukrainian authorities had considered the claimant’s medical condition but had concluded that it did not justify exemption. Consideration of an exemption request, followed by an unfavourable decision, did not itself establish a risk of inhuman or degrading treatment.
5. The Secretary of State was entitled to attach limited weight to the document because its provenance and route into the solicitors’ possession were unexplained. The failure to disclose it for several months, and the absence of evidence explaining why it could not have been produced earlier, were material. The subsequent delay in challenging the reconsidered decision reinforced the conclusion that the fresh claim was intended to delay removal and had no legitimate purpose.
6. The certificate under section 73(8) was therefore not unreasonable and was described as entirely merited. The defendant was awarded costs, subject to the usual Legal Aid restriction.

The judgment records earlier procedural steps in the same judicial-review proceedings:

• Administrative Court: permission was refused on the papers on 19 March 2002 and on renewal by Stanley Burnton J on 23 March 2002.
• Administrative Court: Maurice Kay J granted permission on 6 September 2002, leading to reconsideration and the Secretary of State’s fresh decision dated 31 October 2002.
• High Court (Administrative Court): the present court refused an extension of time and rejected the substantive challenge in any event.