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

Under rule 346 of the Immigration Rules, further asylum representations constitute a fresh claim only where they are sufficiently different from the earlier claim to create a realistic prospect that the relevant conditions will be satisfied. Material must also be significant, credible and unavailable when the earlier claim or appeal was determined.

A challenge to the Secretary of State’s assessment that new evidence is not significant is a rationality challenge. The intensity of review may properly increase where the claimant’s life is at stake. A further family death or disappearance does not, without evidence connecting it to state authorities, necessarily undermine an earlier finding that such responsibility was unproved or establish inadequate state protection.

The claimant sought judicial review of the Secretary of State’s refusal to treat further representations as a fresh asylum claim. His original claim, based on alleged persecution in Colombia because of association with the Union Patriotica, had been rejected on credibility grounds and because there was no evidence that the deaths of family members were caused by the Colombian authorities.

An adjudicator dismissed the appeal, and the Immigration Appeal Tribunal refused permission to appeal. The claimant later relied principally on the disappearance of another brother and on the accepted authenticity of supporting documents. The central issue was whether that material was sufficiently significant to require treatment as a fresh claim.

1. Application dismissed. The Secretary of State’s decision was rational and lawful.
2. Rule 346 required the Secretary of State to disregard material which was not significant, credible or unavailable when the earlier application was refused or appeal determined. The new evidence concerning the brother’s disappearance was credible and unavailable, but its significance had to be assessed against the adjudicator’s binding finding that there was no evidence connecting the earlier family deaths with the authorities.
3. The further disappearance supplied no evidence that the Colombian authorities were responsible. Its tragic nature did not alter the rationality of treating it in the same way as the earlier deaths. The Secretary of State was entitled to take account of the previous credibility findings and the other matters underlying the original refusal.
4. The Secretary of State’s acceptance that documents were genuine did not itself ordinarily constitute new material. A concession could generally be withdrawn and would not bind an adjudicator on a fresh appeal. Nevertheless, where authenticity was accepted before an adjudicator, it would be difficult for the adjudicator to reject the document without a proper basis.
5. The claimant’s alternative submission, that the disappearance was inconsistent with adequate protection in Colombia, also failed. A death, or several deaths, did not necessarily establish inadequate state protection, and the fresh claim had not clearly been advanced on that basis.

The judgment records that the original asylum refusal was followed by an adjudicator’s decision in December 2003. The Immigration Appeal Tribunal refused permission to appeal on 18 February 2004. The present application for judicial review challenged the Secretary of State’s subsequent refusal to treat further representations as a fresh claim.