ZT (Kosovo) v Secretary of State for the Home Department

Further submissions renewing a refused asylum or human-rights claim must be considered under paragraph 353 of the Immigration Rules, even where the original claim was certified under section 94 of the Nationality, Immigration and Asylum Act 2002. The certification process cannot substitute for the fresh-claim decision. The Secretary of State must consider whether to accept the renewed claim and, if rejecting it, whether the new material was previously unconsidered and, with the earlier material, creates a realistic prospect of success before an immigration judge applying anxious scrutiny. A qualifying fresh claim is appealable. A claim that is not fresh is not appealable and requires no further certification. Processing renewed submissions solely as a continuation of the certified claim is unlawful.

The claimant, a Kosovar Ashkali, had his asylum and human-rights claims refused and certified as clearly unfounded. He made further submissions concerning the same protection concerns. The Home Secretary rejected them in letters DL2 and DL3 and maintained the certification.

McCombe J and Collins J refused permission for judicial review, the latter decision being reported at [2006] EWHC 3225 (ADMIN). On renewal, Sir Henry Brooke granted permission to apply for judicial review under the Civil Procedure Rules 1998 and directed that the case proceed in the High Court. The order was then varied so that the Court of Appeal retained the judicial review and heard the merits. The central issue was whether further submissions following a section 94 certification had to be assessed under paragraph 353 of the Immigration Rules.

Appeal allowed. Sedley LJ gave the principal judgment and Buxton LJ agreed. The court recorded that Pumfrey LJ, who had sat on the appeal before his death, had concurred. Judicial review relief was granted, DL2 was quashed, and the Home Secretary was required to reconsider the renewed application under paragraph 353.

1. Interaction between the two regimes. A renewed asylum or human-rights claim cannot lawfully be routed directly into the section 94 certification process as though it were merely a continuation of the original claim. Section 94 and paragraph 353 interlock, but they answer different questions. The Secretary of State must address whether the renewed submissions constitute a fresh claim.
2. Paragraph 353 process. The Secretary of State must first consider whether to accept the renewed claim. If it is rejected, the decision-maker must determine whether the submissions are significantly different because the content has not previously been considered and, taken with the earlier material, creates a realistic prospect of success before an immigration judge. If so, the refusal is a refusal of a fresh and appealable claim. If not, there is no further appeal and no further certification decision is required.
3. Anxious scrutiny. The court applied the guidance in WM (DRC) v Home Secretary [2006] EWCA Civ 1495. The relevant question is not whether the Secretary of State considers the renewed claim meritorious, but whether an adjudicator applying anxious scrutiny could find a realistic prospect of success and a real risk of persecution. Anxious scrutiny applies both to factual evaluation and to legal conclusions.
4. Concurrence and relief. Buxton LJ added that, in a certification case, the Secretary of State may first consider whether the new material undermines the existing certificate. If the certificate falls, an adverse decision on the claim is appealable; if it remains, the certification decision is challengeable by judicial review. In every case where the submissions are rejected, however, paragraph 353 still requires consideration of whether they found a fresh claim.
5. The court refused to withhold relief on the basis that an adverse fresh-claim decision was inevitable. The Home Office had not addressed the correct question, and further evidence concerning the position of Ashkali and Roma in Kosovo was becoming available. DL2 was therefore quashed for lawful reconsideration.

• Court of Appeal (Civil Division): The order granting permission was varied so that the judicial review remained in the Court of Appeal. After hearing the merits, the court allowed the appeal, granted relief and quashed DL2.
• Administrative Court: McCombe J refused permission on the papers. Collins J refused permission on renewal in open court: [2006] EWHC 3225 (ADMIN).
• Earlier Court of Appeal procedural order: Sir Henry Brooke granted permission to apply for judicial review under rule 52.15(3) of the Civil Procedure Rules 1998 and directed that the case proceed in the High Court under rule 52.15(4).