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

For the purposes of the Immigration Rules, a realistic prospect of success must be assessed by applying the real-risk test. Descriptions such as frequent, routine, general or systematic may help explain that test, but cannot replace it or raise the threshold from real risk to probability. A decision-maker misdirects himself by applying the formulation in Hariri v Secretary of State for the Home Department without taking account of the clarification in Batayav v Secretary of State for the Home Department. Where such a misdirection materially affects refusal to treat representations as a fresh claim, the decision is unlawful and must be quashed.

The claimant sought judicial review of the Secretary of State’s refusal to treat representations concerning return to Côte d’Ivoire as a fresh human rights claim. The representations relied on the claimant’s medical condition together with general conditions in Côte d’Ivoire and alleged a real risk of treatment contrary to Article 3 of the Convention. The Secretary of State relied on the approach stated in AZ (risk on return) Ivory Coast CG, which had applied the formulation in Hariri v Secretary of State for the Home Department. Following permission to apply, the Secretary of State issued a further decision maintaining the refusal. The central issue was whether that approach misstated the real-risk test.

1. Application allowed. The decisions dated 14 July 2004 and 9 December 2004 were quashed. The Secretary of State was required to reconsider the matter, and the claimant was awarded costs from 7 April onwards.
2. Paragraph 353 of the Immigration Rules requires a fresh claim to be based on material significantly different from material previously considered. The requirement is met only where the new content had not been considered and, taken with the earlier material, creates a realistic prospect of success.
3. The Secretary of State’s decision letter adopted the approach in AZ (risk on return) Ivory Coast CG, which had applied the formulation in Hariri v Secretary of State for the Home Department. That formulation suggested that, absent personal circumstances, a claimant had to show a consistent pattern of gross and systematic violations of fundamental human rights.
4. That was no longer a safe guide to the law. In Batayav v Secretary of State for the Home Department, the Court of Appeal had clarified that epithets such as frequent, routine, general or systematic were intended to elucidate the concept of real risk, not replace it. A real risk is distinctly less than a probability. Those observations were not obiter dicta: they represented the unanimous view of the Court of Appeal.
5. Read as a whole, the Secretary of State’s further decision applied the erroneous approach. Although it elsewhere stated the real-risk test, its express reliance on AZ (risk on return) Ivory Coast CG and Hariri v Secretary of State for the Home Department constituted a misdirection in law. The underlying merits were left for reconsideration, including the additional country information and other materials placed before the court.

The judgment was a first-instance judicial review decision. The judgment records earlier proceedings before an Adjudicator and permission granted by Wilson J on 3 November 2004, followed by a further decision of the Secretary of State. No appellate decision is stated.