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

For a representation to constitute a fresh claim under paragraph 353 of the Immigration Rules, the claimant must show a realistic prospect of success in an appeal before an immigration judge. The prospect need not be certain. It is sufficient that the claim cannot be regarded as wholly unlikely to succeed.

Earlier favourable factual findings may be considered together with genuinely new evidence accepted as credible in later proceedings. Where that combination raises a properly arguable risk of persecution or ill-treatment, the Secretary of State must treat the representations as a fresh claim and allow a fresh right of appeal.

The claimant, an Afghan national and former low-level member of Hezbi-e-Islami, challenged the Secretary of State’s refusal to treat further representations as a fresh claim under paragraph 353 of the Immigration Rules.

An adjudicator had rejected his earlier asylum appeal but accepted that he had been threatened and assaulted by a cousin associated with the Northern Alliance. The adjudicator concluded that the dispute had not been adopted by the Northern Alliance and that sufficient protection was available.

Subsequently, the Immigration Appeal Tribunal in RS (Afghanistan) [2004] UKIAT OO278 accepted expert evidence concerning the continuing risk faced by former members of Hezbi-e-Islami. The central issue was whether the earlier findings, combined with that new material, gave the claimant a realistic prospect of success on appeal.

1. The claim succeeded. The Secretary of State’s decision of 26 May 2006 was quashed. The Secretary of State was ordered to treat the representations as a fresh claim under paragraph 353 of the Immigration Rules and to allow a fresh right of appeal. The defendant was ordered to pay the claimant’s costs.
2. The applicable question was whether, in light of the findings in RS (Afghanistan) [2004] UKIAT OO278, the claimant had a realistic prospect of success before an immigration judge. A claim need not be certain to succeed. It is enough that it cannot be ruled out as wholly unlikely to succeed.
3. The earlier adjudicator’s factual findings had to be considered together with the new evidence accepted as credible in RS (Afghanistan). The Secretary of State had accepted that Professor Lau’s evidence was a new factor unavailable when the claimant’s original appeal was determined.
4. The Secretary of State’s description of the adjudicator’s findings was not wholly accurate. The adjudicator had found that the claimant’s difficulties arose from his cousin, but that the dispute had not been adopted by the Northern Alliance. The accepted evidence nevertheless showed more recent interest in pursuing the claimant by a Northern Alliance member acting with others.
5. Those matters gave the claimant an arguable case that his low-level membership of Hezbi-e-Islami, coupled with the later interest of his cousin for private reasons, placed him at risk of persecution or ill-treatment in Afghanistan. The ultimate issue remained for the immigration judge. The claimant’s second ground, based on the alleged prominence of his cousin within the Northern Alliance, was not relied on because it lacked evidential support.
6. If the parties could not agree the amount of costs, the costs were to be determined on the papers by a judge of the Administrative Court.

The judgment was a first-instance judicial review decision. The claimant’s earlier asylum appeal had been rejected by an adjudicator in a determination promulgated on 23 April 2003. The judgment also considered the subsequent decision of the Immigration Appeal Tribunal in RS (Afghanistan) [2004] UKIAT OO278 as new material relevant to the fresh-claim question.