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

In assessing whether further representations amount to a fresh asylum claim under Immigration Rules rule 346, the Secretary of State must consider whether the material is significant and credible, whether it is sufficiently different from the earlier claim, and whether there is a realistic prospect of meeting the asylum criteria.

Evidence previously available remains a relevant and weighty consideration because finality matters. It is not, however, an automatic bar where disregarding the evidence could create a real risk of breach of human rights. The principles in Ladd v Marshall remain the starting point, with a discretion to depart from them in exceptional circumstances. On the facts, the Secretary of State was entitled to conclude that the new documents were not sufficiently credible or significant to constitute a fresh claim.

The claimant, a Turkish Kurd, claimed asylum after being refused leave to enter the United Kingdom and after an adjudicator dismissed his appeal. The adjudicator rejected his account of political activity, arrests, ill-treatment and military-service concerns. The claimant did not appeal that decision.

He later submitted further material, including an HADEP membership document, an alleged arrest warrant and identity documents concerning his date of birth. The Secretary of State refused to treat the representations as a fresh claim under rule 346 of the Immigration Rules. Following an earlier decision and procedural adjournments, the court reviewed the Secretary of State’s decision of 21 April 2004. The central issue was whether the further material created a realistic prospect that the asylum criteria would be satisfied.

1. Claim dismissed. The Secretary of State was entitled in law to refuse to treat the further representations as a fresh claim.
2. Rule 346 of the Immigration Rules requires consideration of whether the new claim is sufficiently different from the earlier claim to create a realistic prospect that the criteria in paragraph 334 will be met. Insignificant or incredible material may be disregarded.
3. The principles in Ladd v Marshall remain the starting point when evidence was available at the time of the earlier proceedings. Availability is a relevant factor and should receive considerable weight because finality is important. It is not an automatic entitlement to disregard the evidence. The decision-maker must examine whether the evidence could realistically have affected the result and whether its exclusion could create a risk of breach of the claimant’s human rights.
4. The exceptional approach adopted on the particular facts of Tewedros Tadesse Haile v Immigration Appeal Tribunal did not establish a general departure from the Ladd v Marshall principles in asylum cases. The approach in E v Secretary of State was preferred: the ordinary principles remain the starting point, subject to departure in exceptional circumstances.
5. The further documents did not satisfy the fresh-claim test. The HADEP document was inconsistent with the claimant’s evidence about when he joined the organisation. The alleged arrest warrant raised substantial authenticity concerns and appeared to relate to an incident whose date had changed. Although the identity material might support the claimed date of birth, age was not determinative. The adjudicator’s independent credibility findings on the claimant’s political activity and alleged arrests remained compelling.
6. The Secretary of State had therefore been entitled to conclude that the material was not sufficiently different and that there was no realistic prospect that the paragraph 334 conditions would be satisfied. The usual costs order was made, subject to the costs thrown away by the late service of the Secretary of State’s decision not being enforceable against the legally aided claimant except by set-off if enforcement ever became possible.

The judgment records that an adjudicator dismissed the claimant’s asylum appeal on 23 September 2003. The claimant did not appeal that decision. The present proceedings concerned judicial review of the Secretary of State’s refusal to treat later representations as a fresh claim, ultimately reflected in the decision dated 21 April 2004.