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

Further submissions qualify as a fresh claim under rule 353 only if they contain material not previously considered and, taken with the earlier material, create a realistic prospect of success before an independent immigration judge. The intensity of judicial review of the Secretary of State’s assessment remained open, although it was arguable that review need not be confined to bare irrationality. Humanitarian protection will not be available where an applicant faces a comparable risk in the country of return and in the United Kingdom, and can reasonably seek state protection in both. In those circumstances, there is no realistic prospect that an immigration judge would find the requisite risk in the country of return.

The applicant’s earlier asylum claim was based on his father’s political profile in Iraq. While awaiting removal, he became involved at the margins of a murder conspiracy within the Iraqi Kurdish community in the United Kingdom. He was acquitted of conspiracy to pervert the course of justice but feared reprisals if returned to Iraqi Kurdistan.

The Secretary of State rejected his further submissions under rule 353. Sir Michael Harrison refused permission to bring judicial review proceedings. Carnwath LJ refused permission to appeal, and the applicant renewed that application before the Court of Appeal. The central issue was whether the further submissions had a realistic prospect of success, having regard to the risk of reprisal and the sufficiency of protection available in Iraqi Kurdistan.

Application refused. Lord Justice Sedley held as follows.

1. Rule 353. The further submissions were plainly different from the earlier asylum claim. Rule 353 nevertheless required a realistic prospect of success. That meant a prospect of success before an independent immigration judge, rather than before the Secretary of State who had already rejected the submissions. The judgment described the Secretary of State as the initial decision-maker, consistently with the explanation in WM (DRC) v SSHD [2006] EWCA Civ 1495.
2. Supervisory review. It had been assumed that the Secretary of State’s assessment could be disturbed only on Wednesbury grounds. That issue remained open. It was at least arguable that, because the Secretary of State was effectively judging her own cause and the question was one on which a court was constitutionally better placed to decide, the supervisory court might have to ask whether the decision was correct rather than merely irrational.
3. Protection and risk. Even on close scrutiny, the refusal made good sense. The applicant might face reprisals because of his involvement in the conspiracy, but that risk arose from the Iraqi Kurdish community in the United Kingdom and could exist both in the United Kingdom and in Iraqi Kurdistan. He was not guaranteed safety in either country, but in both he could seek and expect the protection which a state could reasonably provide. The country information and the case law of SM and Others [2005] UKIAT 00111 supported the view that Iraqi Kurdistan could afford sufficient protection.
4. Decision letter. Persistent targeting was not a necessary ingredient of the risk of persecution. The word specifically, when linked to targeting, added nothing. Those matters did not undermine the decision letter, whose central reasoning remained intact.
5. There was no realistic prospect that an immigration judge would find the applicant exposed in Iraq to harm from which he would receive meaningful protection if allowed to remain in the United Kingdom. Permission to appeal would therefore lead nowhere. Application refused.

1. Court of Appeal (Civil Division): renewed application for permission to appeal refused. [2008] EWCA Civ 1054.
2. Administrative Court: Sir Michael Harrison refused permission for judicial review of the Secretary of State’s refusal to accept the further submissions as a fresh claim.
3. Permission stage: Carnwath LJ refused permission to appeal, following which the application was renewed before the Court of Appeal.