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

When considering further submissions as a fresh claim under paragraph 353 of HC 395, the Secretary of State must ask whether there is a realistic prospect that an Immigration Judge, applying anxious scrutiny, would allow the claim. The court must also be satisfied that anxious scrutiny was applied.

An applicant’s membership of a persecuted religious group does not, without more, establish a real risk of persecution on return. The evidence must support that individual conclusion. Where a claimant fundamentally changes his account and admits previous dishonesty, the Secretary of State may assess the case on the facts that can properly be accepted.

The claimant sought judicial review of the Secretary of State’s refusal to treat further submissions as a fresh claim under paragraph 353 of HC 395. His original asylum claim relied on persecution in Pakistan, including an account that his wife and children remained there. The original decision accepted that he was an Ahmadi but rejected his account of prominence, persecution and family circumstances.

Following detention for removal, he advanced a materially different account that his family lived in Germany and that his previous representatives had fabricated or concealed facts. The central issues were whether the new material created a realistic prospect of success and whether responsibility could arise under the Dublin arrangements.

1. Application refused. The Secretary of State had asked the correct question under paragraph 353 of HC 395: whether there was a realistic prospect that an Immigration Judge, applying anxious scrutiny, would conclude that the claimant faced a real risk of persecution on return.

2. The claimant’s accepted status as an Ahmadi did not itself establish a well-founded fear of persecution anywhere in Pakistan. The up-to-date material indicated that actual harm to Ahmadis was not high. The Secretary of State was therefore entitled, after anxious scrutiny, to conclude that the claimant was not at risk.

3. The Tribunal decision in IA and Others was relevant to internal relocation. For an Ahmadi with a well-founded fear in his home area, Rabwah should not be presumed to be a viable internal flight alternative, although it might be viable where the person had family there. That decision did not establish that every Pakistani Ahmadi was at risk or a refugee. On the claimant’s accepted case, there was no sufficient basis for finding a well-founded fear.

4. The fundamental alteration of the claimant’s account did not prevent the Secretary of State from examining facts capable of acceptance. The earlier findings of unreliability were reinforced by the admitted dishonesty, and the explanation blaming former solicitors was unsupported and not credible.

5. The Dublin arrangements provided no basis for requiring or requesting Germany to accept the claimant. Any obligation under Article 16.20 of the Dublin Regulation had ceased after the relevant period outside a member state. In any event, no request had been made to Germany within the relevant period, so responsibility rested with the United Kingdom. Return to Germany also required the German authorities’ agreement.

   The claim was refused. Costs were awarded to the defendant, to be assessed if not agreed.

First-instance judicial review in the Administrative Court. Permission had been granted by Walker J. The application was refused by Sir George Newman.