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

Under rule 346 of the Immigration Rules, further representations amount to a fresh asylum claim only where, excluding material that was previously available, they are sufficiently different from the earlier claim to create a realistic prospect of success. A fresh claim cannot be established merely by attacking or seeking to undermine findings made when the earlier claim was refused. Subsequent country evidence must be assessed in the context of those undisturbed findings. Temporary unrest, heightened general vulnerability and precautionary guidance will not necessarily satisfy the test without evidence of a material deterioration or a specific risk relevant to the claimant.

The claimant, a Gorani from Kosovo, had previously succeeded before an adjudicator, but the Immigration Appeal Tribunal allowed the Secretary of State’s appeal on 22 November 2003. Permission to appeal to the Court of Appeal was refused.

Following inter-ethnic violence in Kosovo in March 2004, the claimant made further representations based on later country evidence, UNHCR material and a report by Dr Hudson. The Secretary of State refused to treat them as a fresh asylum application under rule 346. The central issue was whether the later material was sufficiently different from the earlier claim to create a realistic prospect that the conditions in paragraph 334 would be met.

1. The claim for judicial review was dismissed. The refusal letter and the later detailed grounds constituted the decisions under challenge.

2. Rule 346 required comparison between the new claim and the claim previously rejected. The governing test was that stated in R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768: the new claim must be sufficiently different to admit a realistic prospect of a favourable decision, excluding material on which the claimant could reasonably have relied earlier.

3. A fresh claim could arise from an essentially different ingredient, including a material subsequent change. It could not be created by attacking the validity of the IAT’s earlier findings. Those findings were comprehensive and remained undisturbed. They included that the claimant had no personal risk over and above the general disadvantages faced by Goranis, and that those disadvantages did not amount to persecution or breach of article 3.

4. The March 2004 disturbances, later UNHCR reports and Dr Hudson’s report did not establish a material deterioration in the position of Goranis or objective evidence of their persecution. The evidence showed heightened fear and vulnerability, but also that the disturbances were temporary, displaced persons returned, and existing freedoms resumed. The Secretary of State was entitled to conclude that the material, taken separately or together, did not satisfy rule 346.

5. The reasons given were adequate. Any arguable error in the treatment of Mrs Markovic’s views could not have made a significant difference. The later representations largely elaborated or reasserted earlier submissions and did not displace the earlier conclusion.

The court also confirmed that R v Secretary of State for the Home Department, ex parte Ravichandran (No 3) [1997] 1 Imm AR 74 could legitimately be relied upon, but could not restrict the authoritative test in Onibiyo.

• High Court (Administrative Court): judicial review claim dismissed.
• Immigration Appeal Tribunal: allowed the Secretary of State’s appeal against the adjudicator’s determination on 22 November 2003.
• Court of Appeal: permission to appeal was refused on 17 December 2003.