Golfa, 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, disregarding immaterial, incredible or previously available material, they are sufficiently different from the earlier claim to create a realistic prospect of a favourable decision. UNHCR recommendations concerning removal are important and must be taken into account, but they are not binding on the Secretary of State. UNHCR’s humanitarian responsibilities extend beyond the United Kingdom’s obligations under the Refugee Convention and article 3 of the European Convention on Human Rights. A decision to remove may therefore remain lawful where the Secretary of State has considered the recommendations and has a rational basis for concluding that removal would not create a real risk of persecution or article 3 ill-treatment.

The claimant, a Liberian national, sought judicial review of the Secretary of State’s decision to remove him to Liberia after his asylum appeal had been dismissed. The adjudicator had accepted the factual account but concluded, applying the Tribunal’s assessment in T (Liberia) [2003] UKIAT 00164, that return would not breach article 3.

The claimant relied on later evidence concerning continuing insecurity and on UNHCR recommendations for a suspension of enforced removals. He argued that the representations amounted to a fresh claim under Rule 346 and that failure to follow UNHCR’s recommendation was irrational. The central issues were whether the representations disclosed a realistic prospect of a favourable outcome and whether the recommendation was legally binding.

1. The claim was dismissed. The Secretary of State was entitled to maintain the removal decision and to treat the further representations as not constituting a fresh claim.
2. Rule 346 required comparison of the new and earlier claims. Applying the test in R v Secretary of State for the Home Department, ex parte Onibiyo [1996] Imm AR 370, the question was whether the new claim was sufficiently different to admit of a realistic prospect that a favourable view could be taken of it. The Secretary of State was entitled to conclude that the later country material did not meet that threshold.
3. The evidence showed that conditions in Liberia remained difficult, but it also recorded improvements in security, disarmament and the deployment of United Nations forces. It provided a rational basis for concluding that the claimant would not be persecuted for a Convention reason and would not face a real risk of treatment contrary to article 3.
4. UNHCR recommendations commanded respect and had properly been taken into account. However, UNHCR’s mandate extended beyond persecution within the Refugee Convention and article 3, including complementary protection and wider humanitarian concerns. The Secretary of State’s obligations were narrower and he was not bound to adopt the recommendations.
5. The argument that cooperation with UNHCR, required by General Assembly Resolution 428(V) and Executive Committee recommendations, compelled adoption of the recommendation was rejected. It was inconsistent with the Immigration Act and the Immigration Rules and with Mhute v Secretary of State for the Home Department [2003] EWCA Civ 1029. The Secretary of State had considered the recommendation and had a sufficient reason for declining to follow it.