AK (Afghanistan) v Secretary of State for the Home Department

When further asylum or human rights submissions are considered under Immigration Rules rule 353, the decision-maker must ask whether an independent tribunal might realistically allow the claim after anxious scrutiny. The decision-maker must not decide only whether the claim appears meritorious personally.

Evidence cannot be disregarded merely because it comes from a family member or other partisan witness. When authenticity or credibility is disputed, the relevant question remains whether an immigration judge might accept the evidence, considered with the earlier material and any previous favourable credibility finding. A failure to address that question renders the decision liable to judicial review.

The appellant, an Afghan national of Pashtun origin, had unsuccessfully claimed asylum and protection under articles 2 and 3 of the Human Rights Convention. He subsequently submitted evidence concerning conditions in Afghanistan and the alleged detention and continued pursuit of members of his family. The Secretary of State declined to treat those representations as a fresh claim under rule 353 of the Immigration Rules.

Bean J dismissed the appellant’s judicial review claim in AK (Afghanistan) v Secretary of State for the Home Department [2006] EWHC 2139 (Admin). The central issue on appeal was whether the Secretary of State had asked the correct rule 353 question and subjected the new evidence to anxious scrutiny.

1. The appeal was allowed unanimously. The Secretary of State’s decision refusing to treat the representations as a fresh claim was quashed. The court declined to order an immediate reference to an immigration tribunal because the Secretary of State might accept the asylum claim on reconsideration and also had further material to consider.

2. Rule 353 of the Immigration Rules prevents an unsuccessful claimant from restarting the appeal process without sufficient cause. Its operation nevertheless protects a claimant who produces genuinely fresh material capable of justifying consideration by an independent tribunal. The Secretary of State must decide whether an immigration judge might realistically allow the claim after considering the new and previous material with anxious scrutiny. The Secretary of State’s own assessment of the merits is only the starting point.

3. Following WM (DRC) v SSHD [2006] EWCA Civ 1495, a reviewing court must ask whether the Secretary of State addressed the correct question and whether the facts and resulting conclusions received anxious scrutiny. The court’s function remains one of review rather than a repetition of the original appellate process.

4. The decision letters failed that standard. An affidavit could not properly be disregarded merely because it came from the appellant’s mother. An independent tribunal would consider partisan evidence and assess its weight. The same error affected the treatment of the letter from another relative.

5. The Secretary of State also adopted the wrong perspective when treating a disputed Afghan Red Crescent Society document as a forgery and using it to destroy the appellant’s credibility. The officials formed their own view of authenticity without asking whether an immigration judge might regard the document as genuine after anxious scrutiny. The previous adjudicator’s express finding that the appellant was entirely credible was material to that inquiry.

6. On these facts, the failure to address the correct question required judicial review. Although a fresh claim was not formally declared, it was difficult to see how a properly directed decision-maker could conclude that the rule 353 threshold had not been crossed.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The decision refusing to treat the further representations as a fresh claim was quashed.

2. High Court, Administrative Court: Bean J dismissed the judicial review claim in [2006] EWHC 2139 (Admin).

3. Immigration adjudicator: The original asylum and human rights appeal was dismissed, although the adjudicator accepted the appellant’s account as entirely truthful. Permission to appeal from that determination was refused.