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

Under rule 353 of the Immigration Rules, further submissions constitute a fresh claim only where they are significantly different and, taken with the earlier material, create a realistic prospect of success. The Secretary of State may assess the reliability of new evidence, particularly where an earlier immigration decision rejected the claimant’s account. Official-looking documents from countries where such documents may be obtained improperly must be assessed in the round. Their apparent authenticity is not enough. The decision-maker should consider how the documents came into existence and whether independent evidence supports their genuineness and contents. A reasonable rejection of the new evidence may justify refusing to treat the submissions as a fresh claim.

The claimant, an Ahmadi Muslim from Pakistan, sought judicial review of the Secretary of State’s refusal to treat further representations as a fresh asylum or human rights claim. His original account of persecution had been rejected by an immigration judge, who found it fabricated. The further representations relied principally on an Ahmadiyya Association letter, an FIR and an arrest warrant said to show continuing adverse attention in Pakistan. The central issue was whether that material created a realistic prospect of success under rule 353 of the Immigration Rules, despite the earlier adverse credibility findings.

1. Claim dismissed. The Secretary of State was entitled to conclude that the further representations did not amount to a fresh claim under rule 353 of the Immigration Rules.
2. The relevant question was whether, notwithstanding rejection of the new material, it created a realistic prospect of success on appeal. The Secretary of State was entitled to assess the reliability of the material. The earlier immigration judge’s adverse credibility findings were a relevant starting point, although they did not automatically determine the reliability of all later evidence.
3. The principle in Tanveer Ahmed v Secretary of State, [2002] UKIAT OO439, required documents to be assessed in the round. The fact that official-looking FIRs or arrest warrants may be obtainable by bribery or other improper means could be considered, but could not be assumed to determine every case.
4. The Ahmadiyya Association letter confirmed that the claimant was an active Ahmadi, but did not substantiate the rejected account of proselytising, persecution or the specific incidents relied upon.
5. The FIR and arrest warrant were inherently problematic because they related to alleged events occurring after the claimant had left Pakistan, their contents could not be true on the claimant’s own case, their late production was unexplained, and no independent material supported their validity. The absence of the earlier FIR was also significant.
6. The approach expressed in Rahimi v Secretary of State, [2005] EWHC 2838 (Admin), could not be applied in isolation as imposing too strict a test. The Secretary of State could reject new evidence where, reasonably assessed against the whole case and the earlier findings, it could not provide a realistic prospect of success. Good reason was nevertheless required for rejecting previously unavailable material.
7. The claim was dismissed. The claimant was granted detailed assessment of costs.

The judgment records that the claimant’s original asylum claim was refused by the Secretary of State and that an immigration judge rejected his appeal on 14 June 2005. The present Administrative Court judicial review challenged the subsequent refusal to treat further representations as a fresh claim.