TR (Sri Lanka), R (on the application of) v Secretary of State for the Home Department

Under Rule 353 of the Immigration Rules, further representations constitute a fresh claim only if they include material not previously considered and, taken with the earlier material, create a realistic prospect of success.

Judicial review requires anxious scrutiny of both the question asked and the evaluation of the evidence and law. Material previously before an adjudicator remains previously considered even if not expressly addressed. The Secretary of State may assess the provenance and authenticity of documents and the weight of generalised country evidence. Objective risk, rather than subjective fear or family history alone, determines whether a fresh claim has a realistic prospect of success.

The appellant, a failed asylum seeker from Sri Lanka, had previously claimed asylum and human-rights protection. His claims were rejected by an adjudicator in 2003, and permission to appeal was refused.

He later relied on letters allegedly sent by the LTTE, a UNHCR paper and an expert report, asserting that these materials showed a continuing risk from the LTTE, including in Colombo. The Secretary of State decided on 11 December 2007 that the representations did not amount to a fresh claim. Munby J dismissed the application for judicial review in a judgment reported at [2008] EWHC 747 (Admin). The central issue was whether that decision was open to the Secretary of State under Rule 353.

The appeal was dismissed unanimously. Keene LJ gave the leading judgment, with Smith LJ agreeing. Sedley LJ concurred, adding observations on the intensity of review.

1. Rule 353 and judicial review. Rule 353 requires material to be significantly different because it was not previously considered and, taken with the earlier material, creates a realistic prospect of success. Applying WM (DRC) v SSHD [2006] EWCA Civ 1495, the Secretary of State must ask whether an immigration judge applying anxious scrutiny might find a real risk of persecution. Her own view of the merits is only a starting point. The court’s task was whether the decision was open to her, with review intensity reflecting the potentially grave consequences.
2. The letters and their authenticity. The July 2002 letters had been before the adjudicator in 2003. Their omission from the determination did not make them new material. The adjudicator’s general acceptance of the appellant’s account was not a finding that the letters were genuine. The Secretary of State was entitled to question their authenticity and to attach importance to the absence of any explanation of how they had been obtained, consistently with Naseer v SSHD [2006] EWHC 1671 (Admin).
3. Country evidence and risk. The UNHCR material was general and gave no examples of detention or ill-treatment following such summonses. The Secretary of State was entitled to take into account the adverse assessment of that material in PS (LTTE internal flight -- sufficiency of protection) Sri Lanka CG [2004] UKIAT 00297. The country guidance remained a valuable starting point. The appellant did not fall within the identified categories of persons at particular risk in Colombo, and later decisions confirmed the continuing reliability of that analysis.
4. Even if the letters were genuine, an objective and rational assessment could conclude that the appellant faced no sufficient risk in Colombo and that there was no realistic prospect of a successful asylum appeal.
5. Sedley LJ stated that the court should examine the components of the claim closely rather than simply ask whether a rational Secretary of State could have reached the same conclusion. He considered the Secretary of State’s margin potentially slender in fresh-claim cases, but the difficult issue of the margin did not arise for decision.

1. Court of Appeal (Civil Division). The appeal from Munby J was dismissed on 16 December 2008.
2. Administrative Court. Munby J dismissed the substantive judicial-review application on 11 April 2008. His decision is reported at [2008] EWHC 747 (Admin).