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

Under paragraph 353 of the Immigration Rules, further submissions constitute a fresh claim where, taken with the material previously considered, they create a realistic prospect of success. The threshold is relatively modest. The decision-maker must consider whether an immigration judge could reach a different conclusion and must apply anxious scrutiny. The reviewing court must not resolve the merits of the fresh claim or discount accepted findings at the fresh-claim stage. Credibility findings, the nature and duration of past detention and ill-treatment, records held by the authorities, and scarring may together create the required realistic prospect, even where no current arrest warrant or wanted record is shown.

The claimant, a Sri Lankan Tamil asylum seeker, sought judicial review of the Secretary of State’s refusal to treat further submissions as a fresh claim. His original asylum claim had been dismissed by an Adjudicator, who accepted his credibility, detention and ill-treatment, and had found that he was outside Sri Lanka because of a well-founded fear of persecution, but concluded that changed circumstances removed any current Convention risk. Permission to appeal was refused by the Immigration Appeal Tribunal.

The claimant relied principally on later country guidance in LP (Sri Lankan CG) [2007] UKAIT 00076, concerning records of detention, return risks and scarring. The central issue was whether the new material created a realistic prospect of a different outcome.

1. Application allowed. The Secretary of State’s decision was quashed and the representations were to be treated as a valid fresh claim. Costs were awarded to the claimant in the sum of £3,750. Permission to appeal was refused.
2. Paragraph 353 of the Immigration Rules requires consideration of whether further submissions, taken with previously considered material, create a realistic prospect of success. The first limb was not in issue. Applying WM (DRC) and AR v Secretary of State for the Home Department [2006] EWCA Civ 1495, the decision-maker must ask whether an immigration judge might reach a different conclusion and whether the requirement of anxious scrutiny has been met.
3. The threshold is relatively modest. The court must review the legality of the decision-making process and must not decide the fresh claim itself. It was not for the court at this stage to discount the Adjudicator’s accepted finding that the claimant had suffered significant detention and ill-treatment, or the express finding that he had left Sri Lanka owing to a well-founded fear of persecution.
4. The later country guidance in LP (Sri Lankan CG) [2007] UKAIT 00076 materially affected the assessment of detention records, the significance of release, searches after arrival and scarring. Scarring was not treated as sufficient by itself, but it added weight when considered with the other features of the case.
5. The claimant’s case only just crossed the threshold and the decision did not express a view that the fresh claim would succeed. The claim therefore had to be considered as a fresh claim by the Secretary of State.

The claimant’s original asylum appeal was dismissed by an Adjudicator in March 2003. On 17 April 2003 the Immigration Appeal Tribunal refused permission to appeal. Permission for judicial review was later granted by Jackson J. The present court allowed the judicial review application. Permission to appeal to the Court of Appeal was refused.