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

Fresh representations do not constitute a fresh claim merely because country guidance has changed. Where the claimant provides no new factual material and relies on matters previously rejected, the Secretary of State may assess whether the new authority materially changes the case by reference to the established findings. Under AB and DM (Risk categories reviewed - Tutsis added) DRC CG [2005] UKIAT 00118, a bare assertion of Tutsi ethnicity, perceived Tutsi identity or mixed ethnicity is insufficient. The claimant must provide evidence of the features supporting the alleged risk, including physical characteristics, family or tribal links, geographical origin, language and other relevant aspects of personal profile.

The claimant, a citizen of the Democratic Republic of Congo, claimed asylum after arriving in the United Kingdom. Her claim and subsequent appeals were rejected on credibility and factual grounds, including findings that she lacked the physical characteristics associated with Tutsi identity and had not shown that she had suffered because of any Rwandan connection.

After she was detained pending removal, representatives made further human-rights representations relying principally on changed country guidance in AB and DM (Risk categories reviewed - Tutsis added) DRC CG [2005] UKIAT 00118. The Secretary of State declined to treat the representations as a fresh claim under paragraph 353 of the Immigration Rules. The issue was whether the changed guidance required a different decision despite the absence of fresh evidence.

1. The application for judicial review was dismissed. The Secretary of State was entitled to refuse the further representations and to decide that they did not give rise to a fresh claim. There was no order as to costs.

2. The relevant country guidance in AB and DM (Risk categories reviewed - Tutsis added) DRC CG [2005] UKIAT 00118, particularly the passages identified at paragraphs 39, 40 and 54 of that determination, recognised a real risk for persons of Tutsi ethnicity or believed to be Tutsi, but required a careful assessment of the evidence supporting that perception.

3. A person could not succeed merely by asserting Tutsi identity, perceived Tutsi identity or mixed ethnicity. Relevant matters included distinctive physical characteristics, whether the person appeared to have taken the ethnic identity of one parent, tribal links, geographical location, linguistic identity, customs, traditions and other aspects of personal profile. The burden lay on the claimant to explain why she might be perceived as Tutsi.

4. The claimant had supplied no fresh factual evidence. The only new material was the country-guidance decision and material already considered in that decision. The earlier adjudicator’s findings remained material, including that the claimant did not possess distinctive Tutsi physical characteristics and had no demonstrated basis, beyond matters already rejected, for being perceived as Tutsi.

5. Applying the guidance to those findings, the Secretary of State was entitled to conclude that the claimant had not shown a real risk on return and that removal would not breach the Refugee Convention or the relevant human-rights obligations. The representations were based on the same premise as the original claim and were therefore properly refused under paragraph 353 of the Immigration Rules.

• Adjudicator: dismissed the claimant’s asylum appeal on 28 July 2004, finding her account not credible and fabricated.

• Immigration Appeal Tribunal: refused permission to appeal on 2 November 2004. An application for statutory review was subsequently refused.

• High Court (Administrative Court): granted permission for judicial review but dismissed the claim.