Palash & Anor, R (on the application of) v Secretary of State for the Home Department

Under paragraph 353 of the Immigration Rules, further submissions amount to a fresh claim only where they are significantly different from the material previously considered and, cumulatively with that material, create a realistic prospect of success.

The realistic prospect threshold is low. It requires no more than a reasonable chance that the claim might succeed and that the new evidence might produce a different outcome. General country material or purported corroboration that does not address decisive credibility findings will not ordinarily satisfy the test.

The claimants, Bangladeshi nationals, sought judicial review of decisions that further submissions made on behalf of the first claimant did not constitute a fresh asylum or human-rights claim under paragraph 353 of the Immigration Rules.

An earlier asylum appeal had been dismissed by an adjudicator, and permission to appeal to the Immigration Appeal Tribunal had been refused. The further submissions consisted principally of later letters from Reporters Sans Frontières concerning alleged threats arising from the first claimant’s journalistic work. The central issue was whether that material, considered cumulatively with the evidence previously examined, created a realistic prospect of success.

1. The application for judicial review was dismissed. The further submissions did not amount to a fresh claim under paragraph 353 of the Immigration Rules.

2. Applying the principles in R v Secretary of State for the Home Department, ex parte Onibiyo, [1996] QB 768, Secretary of State for the Home Department v Boybeyi, [1997] Imm AR 491, and R (on the application of Abraham Rahimi) v Secretary of State for the Home Department, [2005] EWHC 2838 (Admin), the court treated the realistic prospect of success as a low threshold. It required a reasonable chance that the claim might succeed and that the new evidence might lead to a different outcome.

3. The later letters had to be assessed together with the material previously considered. Their general assertions about the position of journalists in Bangladesh added little to the existing country evidence. Their specific assertions that the first claimant’s account had been checked did not address the inconsistencies and credibility concerns identified by the adjudicator.

4. The new material therefore did not undermine the adjudicator’s rejection of the first claimant’s account, his claimed fear of persecution, or the alleged risk of ill-treatment. It did not raise a realistic prospect of a different outcome and consequently did not give rise to a fresh right of appeal.

The judgment describes an earlier asylum appeal before an adjudicator, which was dismissed on 8 January 2003. Permission to appeal to the Immigration Appeal Tribunal was refused on 12 February 2003. The present judicial review claim challenged the Secretary of State’s later decisions under paragraph 353 of the Immigration Rules.