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

On a fresh asylum or human-rights claim, the question is whether the further submissions are significantly different from the material previously considered and, taken with that material, create a realistic prospect of success. The decision-maker’s assessment remains subject to the approach in R v Secretary of State for the Home Department ex parte Onibiyo [1996] QB 768: unless and until the Court of Appeal revisits it, the court reviews the decision on conventional Wednesbury grounds rather than substituting its own assessment.

Evidence of changed country conditions may be relevant, but general evidence must still establish a realistic prospect of a different outcome. Earlier factual findings cannot be reopened as an appellate exercise. The application was therefore dismissed.

The claimant, an Afghan Pashtun, entered the United Kingdom in 2002 and was refused asylum. An adjudicator accepted his account but found no well-founded fear of persecution or real risk under Articles 2 and 3 of the Human Rights Convention, including because he could relocate within Afghanistan. Permission to appeal was refused.

Further representations based on later country material and evidence concerning the claimant’s family were rejected as not amounting to a fresh claim under paragraph 353 of the Immigration Rules. The claimant sought judicial review, arguing that the material showed changed conditions and that the Secretary of State had applied the wrong legal test.

1. The application was dismissed. The court held that the governing approach to a fresh claim remained that stated in R v Secretary of State for the Home Department ex parte Onibiyo [1996] QB 768. The court was bound to follow that approach unless and until the Court of Appeal held that it was no longer good law.
2. The material had to be compared with the earlier claim, excluding material which could reasonably have been relied upon earlier. It had to be significantly different and, taken with the earlier material, create a realistic prospect of success notwithstanding the previous refusal. The Secretary of State’s decision was reviewable on Wednesbury grounds, not by substituting the court’s own view of the merits.
3. The court considered the evidence of increased risk to Pashtuns in northern Afghanistan, together with the evidence concerning protection in Kabul. Applying R (Bagdanavicius) v Secretary of State for the Home Department [2005] 2 AC 668 and R (Januzi) v Secretary of State for the Home Department [2006] 2 WLR 397, it could not be said that the Secretary of State had acted irrationally in concluding that there was no reasonable prospect of a different conclusion concerning general risk to a Pashtun returned to Kabul.
4. The claimant could not use judicial review as a belated appeal against the adjudicator’s finding that he faced no specific risk. The later documents concerning his family were either of little assistance or insufficient to make the Secretary of State’s conclusion irrational or Wednesbury unreasonable.
5. The report produced at the hearing had not been considered by the Secretary of State and was excluded from the court’s assessment. The medical-treatment argument was not pursued.

The judgment states that an adjudicator dismissed the asylum appeal on 8 July 2002 and that permission to appeal was refused on 5 December 2002. No application for judicial review was then made. The present judicial review application was subsequently brought against the refusal to treat further representations as a fresh claim.