A v Secretary of State for the Home Department

For a further asylum or human-rights claim under the Immigration Rules, the decision-maker must assess the new material together with the material previously considered. A claim is fresh only where the content was not already considered and, cumulatively, creates a realistic prospect of success.

Judicial review requires anxious scrutiny. The decision-maker must ask whether an adjudicator applying that standard could realistically find a real risk of persecution on return, and must scrutinise both facts and legal conclusions. Vigilance does not permit fanciful or speculative reasoning. Mere association with an evangelical or anti-Islamic body is insufficient without material showing a real possibility of relevant activity on return and consequent persecution.

The appellant, an Iranian convert to Christianity, arrived in the United Kingdom with his wife and child on a visit visa and claimed asylum. The claim was refused, his appeal to the AIT was dismissed, and the High Court refused reconsideration.

Shortly before removal, new solicitors submitted further material concerning the family’s association with an evangelical sect with anti-Islamic teachings and its website. Removal proceeded, and judicial review proceedings sought deferral and the family’s return. Holman J refused an interim return order. The Court of Appeal adjourned the appeal against that order to determine whether the further representations amounted to a fresh claim under rule 353. The central issue was whether the Secretary of State had lawfully rejected them.

The substantive judicial review application was refused. The appeal concerning Holman J’s refusal of an order seeking the appellant’s return was adjourned while the fresh-claim issue was determined. Once that issue failed, it was accepted that the relevant judicial-review ground could not assist the appellant.

1. Rule 353. Under the Immigration Rules, further submissions must be considered together with the material previously considered. They amount to a fresh claim only if the content was not already considered and, taken with the earlier material, creates a realistic prospect of success notwithstanding its rejection.
2. Anxious scrutiny. The guidance in WM (DRC) v SSHD [2006] EWCA Civ 1495 required the Secretary of State to ask whether an adjudicator applying anxious scrutiny could realistically think that the appellant faced a real risk of persecution on return. The decision-maker also had to apply anxious scrutiny to both the facts and the legal conclusions drawn from them.
3. Application to the evidence. The further material showed, at most, a passive association with a church containing an evangelical sect and the publication of material on its website. It did not make it rationally possible that the appellant would undertake activity on return creating a real risk of persecution. Website monitoring, publicity, the sect’s anti-Islamic views, and reports of detention or harassment did not supply that missing link. The country guidance in FS and Ors v SSHD [2004] UKIAT 00303 was consistent with the need for evidence of relevant religious activity and risk.
4. Evidence of the Netherlands’ asylum practice had no legal relevance to the requirements imposed in the United Kingdom by the Immigration Rules, the Geneva Convention and the Directive. Anxious scrutiny required vigilance, but not fanciful or speculative scrutiny.
5. Aggregating the further material with the earlier evidence disclosed no greater risk than had previously been established. The Secretary of State was therefore entitled, and right, to conclude that there was no fresh claim. The judicial review application was refused.

• Court of Appeal (Civil Division). On 4 March 2008, the court adjourned the appeal from Holman J’s refusal of an interim return order and determined the principal fresh-claim judicial-review issue. It held that the further representations did not amount to a fresh claim and ordered that the application be refused.
• Administrative Court. Holman J refused the return application on 13 July 2007. Silber J later refused permission on two grounds and adjourned the remaining issues. Mitting J subsequently granted permission on the issues left alive and stayed further steps pending the appeal.