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

When deciding whether further submissions amount to a fresh claim, the Secretary of State must ask whether, taken with the material previously considered, they create a realistic prospect of success before an immigration judge. The assessment requires anxious scrutiny of the evidence in the round.

In Sri Lankan Tamil cases, the central question is whether the authorities may suspect a sufficiently significant connection with the LTTE to create a real risk of detention and ill-treatment. Country-guidance factors are not an exhaustive checklist. Each case must be assessed on its own facts, distinguishing genuine risk factors from background factors and considering cumulative effects. A decision letter must address the material representations and cannot be saved by formulaic citation of general principles.

The claimant, a Sri Lankan Tamil, challenged the defendant’s refusal to treat further representations based on deteriorating country conditions as a fresh claim under paragraph 353 of the Immigration Rules.

His earlier asylum claim had been refused and his appeal dismissed. The representations relied on his alleged detention and release on reporting conditions, family connections with the LTTE, and the changed situation in Sri Lanka. The defendant’s decision letter relied substantially on the earlier adjudicator’s findings and concluded that the claimant was unlikely to be of adverse interest on return.

The central issues were whether the Secretary of State had applied the correct fresh-claim test with anxious scrutiny and whether the decision had adequately assessed the claimant’s relevant risk profile.

1. The claim for judicial review succeeded. The decision letter was unlawful because it failed to address material features of the claimant’s asserted profile, particularly the alleged LTTE connections through his brother and father and the circumstances of his detention, release and alleged breach of reporting conditions.

2. Paragraph 353 of the Immigration Rules reflects the test in R v Secretary of State for the Home Department ex parte Onibiyo [1996] QC 768. The Secretary of State must consider whether the further submissions, together with the previously considered material, create a realistic prospect that an immigration judge would take a favourable view. The decision remains that of the Secretary of State and may be challenged on traditional Wednesbury grounds.

3. The Secretary of State must apply anxious scrutiny. This requires asking the correct question and giving proper weight to the issues by considering the evidence in the round. The earlier adjudicator’s findings are the starting point for any later appeal, but unclear findings must be unravelled by evidence or by allowing evidence to be adduced.

4. The relevant question in Sri Lankan Tamil cases is whether there is a real risk that the authorities would suspect the claimant of a sufficiently significant link to the LTTE to cause detention on return. The factors identified in LP (LTTE area, Tamils, Colombo, risk?) Sri Lanka CG [2007] UKAIT 00076 are neither exhaustive nor a checklist. Each case requires a detailed assessment of its own facts, including the distinction between real risk factors and background factors and the possible cumulative effect of several factors.

5. A decision-maker should address the representations actually advanced. Repetitive citation of country guidance or passages from an earlier determination cannot substitute for reasoning directed to the individual case. Comparative examination of apparently similar cases should generally be avoided because the facts of another case may be an unreliable measure of risk.

6. The significance of detention or breach of reporting conditions depends in part on whether the detention or release is likely to have been recorded and on the likely contents of any record. The degree of risk remains case-specific.

The claimant’s original asylum claim was refused, and his appeal was dismissed on 29 May 2003. Permission to appeal was refused on 21 July 2003. The present judicial review claim was later permitted by Collins J. on 20 November 2007. This court allowed the judicial review claim.