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

Under rule 353 of the Immigration Rules, the Secretary of State must ask whether new material, considered with the material already assessed, creates a realistic prospect that an adjudicator applying anxious scrutiny would find a real risk of persecution. The question is not whether the Secretary of State personally considers that the claim should succeed.

The decision is reviewable only for irrationality, but a decision reached without anxious scrutiny is irrational. Judicial review remains supervisory: the court must determine whether the correct realistic-prospect question was asked and anxiously scrutinised, rather than decide the fresh claim itself.

Two failed asylum applicants submitted further evidence and asked the Secretary of State to treat it as a fresh claim under rule 353 of the Immigration Rules.

In WM’s case, a Deputy High Court judge refused permission for judicial review. Permission was later granted and the claim was directed to proceed in the Court of Appeal. In AR’s case, Collins J granted judicial review and quashed the Secretary of State’s refusal; the Secretary of State appealed.

The common issue was the respective role of the Secretary of State and the supervisory court when deciding whether new asylum material has a realistic prospect of success before an adjudicator.

1. The court allowed WM’s appeal and dismissed the Secretary of State’s appeal in AR. The refusals to treat the further submissions as fresh claims were quashed. Both matters were remitted to the Secretary of State for reconsideration.

2. Rule 353 requires two judgments. The decision-maker must first decide whether the further submissions contain material not previously considered. If so, the decision-maker must decide whether that material, taken with the earlier material, creates a realistic prospect of success in a further asylum claim.

3. The second question concerns the realistic prospect that an adjudicator, applying anxious scrutiny, would conclude that the applicant faces a real risk of persecution. It is not whether the Secretary of State himself would allow the claim. The Secretary of State may assess the reliability of new material by reference to earlier credibility findings, but must recognise that such findings may have little bearing on independent third-party evidence.

4. There is no appeal from a rule 353 decision. Following Cakabay v SSHD [1999] Imm AR 176, judicial review is confined to irrationality. However, anxious scrutiny is integral to rational decision-making in asylum cases. The reviewing court must ask whether the Secretary of State asked the correct realistic-prospect question and applied anxious scrutiny to both factual evaluation and legal conclusions.

5. In WM’s case, the Secretary of State had applied the wrong question to expert material which an adjudicator could properly accept. In AR’s case, a newspaper article which was not intrinsically incredible, and which could transform the earlier credibility assessment if genuine, had not received the necessary scrutiny.

• Court of Appeal (Civil Division): WM’s appeal was allowed and the Secretary of State’s appeal in AR’s case was dismissed: [2006] EWCA Civ 1495. The refusals were quashed and remitted.
• High Court, Administrative Court: Collins J granted AR judicial review and quashed the refusal. In WM’s case, David Lloyd Jones QC, sitting as a Deputy High Court judge, refused permission for judicial review; the judgment records that Neuberger LJ later granted permission and directed the claim to proceed in the Court of Appeal.