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

Under Rule 353, further submissions amount to a fresh claim where they are significantly different from material previously considered and, taken with that material, create a realistic prospect of success. The threshold is low and means no more than a reasonable chance that the claim may succeed.

The Secretary of State may reject evidence which is intrinsically incredible, or which no reasonable person could believe. He must not reject a potentially decisive new document merely because he personally disbelieves it where it is facially credible and cannot reasonably be rejected. The claim must then be reconsidered through a fresh right of appeal.

The claimant, an Afghan national, had previously failed in an asylum and human rights claim. An adjudicator rejected his account and found no risk on return. He later submitted a newspaper article, supported by expert evidence, which allegedly identified him as a person wanted for prosecution in Afghanistan.

The Secretary of State refused to treat the material as a fresh claim, relying principally on the claimant’s adverse credibility findings and doubts about the article. The central issue was whether the decision maker could determine the article’s genuineness by rejecting it as personally unconvincing, or whether the Rule 353 threshold required a more limited approach.

1. The claim succeeded. The claimant was entitled to a fresh right of appeal. The case did not determine that the later asylum claim would ultimately succeed.
2. Rule 353 of the OAC 395 requires the decision maker to ask whether the further submissions are significantly different because their content has not previously been considered, and whether, taken with the earlier material, they create a realistic prospect of success. The realistic prospect test is a low threshold, amounting to a reasonable chance of success.
3. The Secretary of State’s proposed approach was too restrictive. The decision maker could not refuse a fresh claim simply because he did not believe new evidence. Rejection was permissible where the evidence was intrinsically incredible or where no reasonable person could reasonably believe it.
4. The newspaper article was not intrinsically incredible. Although there were substantial reasons for doubting its authenticity, it could reasonably be believed. If genuine, it materially undermined the earlier credibility findings and could support a risk of persecution or treatment contrary to article 3 of the European Convention on Human Rights.
5. The earlier approach in R v Secretary of State ex-parte Habibi [1997] 391, supported by Secretary of State for the Home Department v Beybeyi [1997] 491, had not been overruled. The court applied that approach in construing the Rule 353 threshold.
6. The Secretary of State and the claimant could make further enquiries into the article’s authenticity. Costs were payable by the defendant, subject to public assessment if not agreed.