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

When deciding whether later representations amount to a fresh claim under paragraph 353 of the Immigration Rules, the decision-maker must ask:

1. whether the material was previously considered;
2. if not, whether it could reasonably be believed; and
3. whether, with the earlier material, it creates a reasonable prospect that a favourable view could be taken of the new claim.

At the permission stage, the court is not required to determine the ultimate credibility of the new evidence. Material should be rejected as incredible only where it is intrinsically incredible or no reasonable person could believe it. A claim should proceed where its prospects are arguable and more than fanciful.

The claimant challenged the Secretary of State’s refusal to treat further representations as a fresh claim under paragraph 353 of the Immigration Rules. The representations followed information suggesting that her sister had been killed, her aunt had died, and her brothers had disappeared in Uganda. Earlier findings had accepted serious abuse by her father but concluded that she could safely relocate within Uganda with family support.

Hodge J refused permission to apply for judicial review, considering the claim unarguable. The claimant renewed the application after further evidence clarified the timing and circumstances of the representations. The central issues were whether the new material could affect the earlier relocation assessment and whether the Secretary of State had lawfully applied paragraph 353.

1. Application granted. The renewed application for permission to appeal was treated under CPR 52.15(3) and (4) as an application for permission to apply for judicial review. The matter was remitted to the Administrative Court for a substantive hearing.
2. The chronology relied upon by Hodge J was materially affected by evidence not previously before him. The evidence indicated that the claimant had attempted to raise the new circumstances before her detention, and therefore his reasoning required substantive reconsideration.
3. The earlier adjudicator’s relocation conclusion appeared to depend significantly on the availability of family support. If the new evidence concerning the death or disappearance of family members were accepted, that aspect of the relocation assessment could materially change.
4. At this stage the court was not required to decide the ultimate credibility of the new material. Following Rahimi v Secretary of State for the Home Department [2005] EWHC 2838 (Admin), material may be rejected at the threshold where it is intrinsically incredible or no person could reasonably believe it. The present material was not shown to meet that standard.
5. The appropriate paragraph 353 questions were whether the material had previously been considered, whether it could reasonably be believed, and whether, taken with the previously considered material, there was a reasonable prospect of a favourable view being taken of the new claim. The claim had more than a fanciful prospect of success and required substantive judicial review.

The order was for remission to the Administrative Court. The claimant was awarded publicly funded costs.

1. Court of Appeal (Civil Division): permission to appeal had been refused on the papers by Carnwath LJ. On renewal, Maurice Kay LJ granted permission and remitted the matter to the Administrative Court for a substantive hearing.
2. Administrative Court: Hodge J had refused permission to apply for judicial review, holding the proposed challenge unarguable.