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

For a claim to qualify as a fresh claim, the Secretary of State must ask whether the new material, if considered at an appeal, might produce a different decision. The Secretary of State may reject evidence that is intrinsically incredible or inconsistent with established findings, but must not resolve disputed factual issues where reasonable views are available. In an asylum claim based on sexual orientation, the possibility that the claimant cannot live discreetly on return may be material. A genuine long-standing relationship, lengthy residence and the circumstances of a claimant’s immigration history may also be relevant to proportionality under Article 8. The court allowed the claim because material evidence had been wrongly rejected and the fresh-claim threshold had been misapplied.

The claimant, an Algerian national, had entered the United Kingdom as a minor and later made an asylum claim based on his homosexuality. His appeal against refusal of that claim was dismissed. He subsequently relied on new evidence concerning his participation in gay-rights activities, his inability to live discreetly in Algeria, medical evidence, and a stable relationship with his partner.

The Secretary of State rejected the material as insufficient to amount to a fresh claim under rule 353 and decided that the claimant had no entitlement to remain. Permission for judicial review was granted on the issue of risk arising from the claimant’s inability to conceal his sexuality. The court also permitted argument concerning the partner relationship and Article 8 proportionality.

1. Fresh claim. The Secretary of State had to consider whether the new material, insofar as it differed from the evidence previously considered, might result in a different decision if an appeal were heard. That was the relevant threshold under rule 353.
2. Assessment of evidence. The Secretary of State could reject evidence which was intrinsically incredible or which conflicted with findings made by the adjudicator. However, he should not make his own adverse findings of fact where reasonable views could be held either way. The conclusion that the claimant had deliberately exaggerated his homosexuality to frustrate removal was not open on the evidence.
3. Sexual orientation and discretion. The earlier decision and the refusal letter proceeded on the basis that the claimant could behave discreetly in Algeria. The new medical and factual evidence was capable of showing that he could not conceal his homosexuality and that this could materially affect the assessment of risk and persecution.
4. Article 8. The evidence of a genuine and long-standing relationship with the partner was materially different from the evidence previously considered. The length of the claimant’s residence, his age on arrival, his treatment while detained as an adult, the relationship, and whether it could continue in Algeria were relevant matters in assessing proportionality. Immigration control would normally make removal proportionate, but this was an exceptional case capable of requiring further consideration.
5. The claim was allowed. The decision that the material did not amount to a fresh claim was quashed. The Secretary of State was required to reconsider the matter as a fresh claim and, if it remained rejected, to make a decision carrying a right of appeal to the Asylum and Immigration Tribunal. The claimant was awarded reasonable costs, subject to detailed assessment if not agreed.

Permission for judicial review was initially refused on the papers by Lloyd Jones J. Holman J subsequently granted permission on the issue of risk arising from the claimant’s inability to live discreetly in Algeria and allowed argument on the Article 8 issue. The Administrative Court allowed the claim and quashed the Secretary of State’s decision.