WM (DRC) v Secretary of State for the Home Department

A decision whether further asylum submissions amount to a fresh claim is reviewable on grounds of irrationality, informed by anxious scrutiny. The court must ask whether the Secretary of State addressed the realistic prospect of an adjudicator finding a real risk of persecution, and whether he applied anxious scrutiny to the facts and legal conclusions. His own assessment of the merits is only a starting point. The threshold for a fresh claim is modest. Earlier adverse credibility findings may be relevant, but independent evidence cannot automatically be treated as suspect because the applicant was disbelieved. The judicial approach to certification of clearly unfounded claims cannot displace the governing fresh-claim review standard.

The court heard together two challenges concerning further evidence submitted by unsuccessful asylum applicants. WM, a citizen of the Democratic Republic of the Congo, alleged that he faced political persecution after refusing to assist in assassinating opposition politicians. An adjudicator rejected his account. He subsequently submitted further evidence, including an expert report. The Secretary of State refused to recognise a fresh claim. A Deputy High Court Judge refused permission for judicial review, but Neuberger LJ granted permission and directed that the judicial review proceed in the Court of Appeal.

AR, a native of Afghanistan, alleged that his father's position under the former Communist regime had exposed his family to persecution by the Taliban. An adjudicator disbelieved his account. AR subsequently produced a newspaper article, supported by expert evidence, which might corroborate it. Collins J quashed the Secretary of State's refusal to recognise a fresh claim. The Secretary of State appealed with permission.

The common issue was the respective role of the Secretary of State and the reviewing court when assessing further submissions under rule 353 of the Immigration Rules.

1. WM's appeal was allowed and the Secretary of State's appeal in AR's case was dismissed. Buxton LJ delivered the judgment, with which Jonathan Parker and Moore-Bick LJJ agreed. Both decisions refusing to recognise fresh claims were quashed, and both matters were remitted to the Secretary of State.

2. Under rule 353 of the Immigration Rules, the Secretary of State had to consider whether the further material had already been considered. If it had not, he had to assess whether it, together with the previous material, created a realistic prospect of success before an adjudicator. This was a modest threshold. The adjudicator needed to identify a real risk of persecution rather than achieve certainty. All decision-makers had to apply anxious scrutiny (paras 6–7).

3. Earlier findings about the applicant's honesty or reliability could inform the assessment where relevantly probative. Their relevance might be slight where the new evidence came from an independent source. Such evidence could not automatically be discredited because the applicant had previously been disbelieved (para 6).

4. The fresh-claim decision remained the Secretary of State's decision, subject to judicial review rather than appeal. Cakabay v SSHD [1999] Imm AR 176 established that it could be challenged only on Wednesbury grounds. The change from former rule 346 to rule 353 did not affect that governing approach (paras 8–10, 14).

   The reviewing court had to ask two questions. Had the Secretary of State considered whether an adjudicator applying anxious scrutiny might find a real risk of persecution? Had he himself applied anxious scrutiny to the factual evaluation and legal conclusions? His own view of the claim's merits was only a starting point. Failure to satisfy either requirement justified judicial review (paras 10–11).

5. The approach to clearly unfounded claims in Razgar v SSHD [2003] Imm AR 529 and Tozlukaya v SSHD [2006] EWCA Civ 379 could not be imported into fresh-claim review. Binding authority prevented that course. The court also expressed reservations about substituting its own assessment and assuming that this would necessarily produce the same answer as anxious-scrutiny review. Those reservations did not determine the correct approach to certification itself (paras 13–20).

6. In WM's case, the Secretary of State had asked the wrong question. Evidence from Dr Kennes, an expert on the Democratic Republic of the Congo, was capable of supporting a favourable adjudicator's assessment despite its limitations. In AR's case, the Secretary of State had failed to apply the necessary scrutiny to a newspaper article which, if genuine, could undermine the earlier credibility findings. Both matters required reconsideration in accordance with the court's judgment (paras 24–27).

• Court of Appeal: In [2006] EWCA Civ 1495 , WM's appeal was allowed and an order quashing the Secretary of State's decision was substituted. The Secretary of State's appeal in AR's case was dismissed and Collins J's quashing order upheld. Both matters were remitted to the Secretary of State.
• Court of Appeal, permission stage: Neuberger LJ granted WM permission for judicial review and directed that the application proceed in this court. He also granted the Secretary of State permission to appeal in AR's case.
• High Court, Administrative Court: David Lloyd Jones QC, sitting as a Deputy High Court Judge, refused WM permission for judicial review. Collins J granted AR's application for judicial review and quashed the refusal to recognise a fresh claim.