Hyseni & Anor, R (on the application of) v Secretary of State for the Home Department

Representations following refusal of asylum constitute a fresh claim only where they are sufficiently different from the earlier claim to create a realistic prospect of success. Material that was significant, credible and available when the earlier application or appeal was determined cannot ordinarily establish that difference. A change of form does not make evidence new where its essential content was already before the decision-maker. Where medical and country evidence substantially repeats material previously considered, and there is no significant deterioration in the claimant’s condition, the Secretary of State may treat the representations as a reiteration rather than a fresh claim.

The claimants, citizens of Serbia and Montenegro from Kosovo, sought judicial review and injunctive relief concerning decisions to treat Mrs Hyseni as an absconder, detain Mr Hasani, and continue requiring Mrs Hyseni to report weekly. Their asylum appeals had been dismissed by an adjudicator, and the subsequent appeal and statutory review processes had been exhausted.

The claimants then submitted further representations relying principally on medical evidence and an updated UNMIK document concerning treatment for post-traumatic stress disorder in Kosovo. The Secretary of State treated the representations as no more than a repetition of the earlier claim. The central issue was whether the representations amounted to a fresh claim under paragraph 346 of the Immigration Rules.

1. Application refused. The claim for injunctive relief, permission to challenge the Secretary of State’s decisions, and interim relief were all refused.
2. The governing approach was identified from Ratnam v Secretary of State for the Home Department [2003] EWHC 398 Admin and paragraph 346 of the Immigration Rules. Further representations constitute a fresh claim only if the claim is sufficiently different from the earlier claim that there is a realistic prospect that the relevant asylum conditions will be satisfied.
3. In assessing whether the representations are sufficiently different, material that is not significant, not credible, or was available when the earlier application was refused or the appeal determined is to be disregarded. The court noted that the material relied upon had already been before the adjudicator, although presented in a different form.
4. The updated medical and country information substantially repeated the earlier material. There was no significant deterioration in Mrs Hyseni’s condition. The essential ingredients of the purported claim were therefore identical to those previously determined. It was not a fresh claim.
5. The court observed that any further purported claim would require consideration of whether it constituted an abuse of the court’s process. The present claim came close to that threshold, had no realistic prospect of success, and had been prepared at substantial public expense. The court also directed that the Legal Services Commission scrutinise the relevant files in light of the excessive volume of material submitted.