I, R (On the Application Of) v Secretary of State for the Home Department

In deciding whether representations amount to a fresh asylum or human rights claim, the Secretary of State may rely on earlier adverse credibility findings unless genuinely fresh evidence casts doubt on them. Country guidance must be applied to the claimant’s individual circumstances; nationality alone does not establish a real risk of persecution or treatment contrary to the European Convention on Human Rights.

Applicants for judicial review owe the court a duty of candour. They must disclose all relevant material, including adverse immigration decisions and prior determinations. A serious failure may justify refusal of permission and may expose legal representatives to a personal costs order.

The claimant, a Sri Lankan Tamil who had entered the United Kingdom as an unaccompanied minor, had previously been refused asylum and further leave to remain. His appeal was dismissed after his account and alleged involvement with the LTTE had been rejected.

Following service of removal papers, he relied on deterioration in Sri Lanka and a United Nations High Commissioner for Refugees report, seeking to establish fresh asylum and human rights claims. The Secretary of State refused the representations on paper. The renewed application for permission concerned whether the new material was capable of overcoming the earlier findings and establishing a real risk on return.

1. Permission refused and claim dismissed. The country guidance decision in LP established that being Tamil, without more, did not create a real risk of persecution or Convention-incompatible treatment. The relevant assessment remained individual and fact-sensitive.
2. The claimant’s previous adjudicator’s findings were comprehensive: his account had been rejected, he had no involvement with the LTTE, had not been detained and was not of interest to the Sri Lankan authorities. In those circumstances, the new country material did not make the proposed claim arguable.
3. The Secretary of State was entitled to rely on the earlier findings unless the fresh evidence cast doubt on them. The court referred to AK as an example where new newspaper evidence appeared to support an account previously rejected. That circumstance was absent here.
4. Applicants seeking judicial review must comply with a duty of candour. They must place before the court the full relevant history, including adverse determinations of the Asylum and Immigration Tribunal or immigration judges. Failure to do so may itself justify refusal of permission, even where an arguable claim might otherwise exist.
5. Although the failure to include the earlier determination was an error, the court accepted that there had been no deliberate breach. The Secretary of State was awarded £400 for the acknowledgment of service. No order was made for the costs of the hearing.