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

Rule 353 of the Immigration Rules applies where a person makes further asylum or human-rights submissions in the United Kingdom after returning from abroad. The decision-maker must consider whether the submissions are significantly different and, taken with the earlier material, create a realistic prospect of success before an Immigration Judge. The threshold is modest, but the assessment must be conducted with anxious scrutiny and proper weight given to the evidence considered in the round. Judicial review is limited to whether the decision is irrational or unreasonable in the Wednesbury sense. A decision supported by cogent reasons concerning the authenticity and significance of new evidence will not be arguable on that basis.

The claimant, an Iraqi Kurd, had previously claimed asylum in the United Kingdom. His claim and subsequent appeal were rejected. After voluntarily returning to Iraq, he re-entered the United Kingdom and made further asylum and human-rights submissions, relying principally on an alleged arrest warrant and an allegation that he had been tortured.

The Secretary of State decided that the submissions did not amount to a fresh claim under rule 353 of the Immigration Rules. The claimant sought judicial review of those decisions and of his removal to the Kurdish Autonomous Zone. The central issues were whether rule 353 applied to the submissions and whether the Secretary of State’s assessment was irrational or unreasonable.

1. Rule 353 applied. The claimant made his further asylum and human-rights submissions while in the United Kingdom. The fact that he had previously left the country, or that some of the alleged persecution occurred during that absence, did not take the submissions outside rule 353.
2. Fresh-claim test. The Secretary of State had to decide whether the new material had not already been considered and whether, taken together with the earlier material, it created a realistic prospect of success before an Immigration Judge. The threshold was modest. The assessment nevertheless required anxious scrutiny, proper weight to the issues raised and consideration of the evidence in the round, as explained in WM (DRC) v Secretary of State for the Home Department; Secretary of State for the Home Department v AR (Afghanistan) [2006] EWCA Civ 1495.
3. Reviewing the decision. Whether the further submissions amounted to a fresh claim was for the Secretary of State. The Administrative Court could interfere only if the conclusion was irrational or unreasonable in the Wednesbury sense. The later decision letters gave cogent reasons for rejecting the alleged arrest warrant as unauthentic and for attaching little weight to the unsupported allegation of torture. The conclusion that no Immigration Judge would reach a different view was therefore not arguably irrational.
4. Removal. The removal itself was not shown to be unlawful. The claimant’s solicitors had, however, been misled by an honest administrative mistake about its timing, caused by a serious failure to record information accurately.

Permission to seek judicial review was refused.

The judgment is a first-instance decision. The claimant’s earlier asylum appeal was dismissed by an Adjudicator on 25 November 2003, and permission to appeal was refused. Permission to seek judicial review in the present proceedings had also previously been refused on the papers by Stadlen J on 21 April 2008.