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

Under paragraph 353 of the Immigration Rules, fresh representations constitute a fresh claim where there is a realistic prospect that an immigration judge, considering the material with the earlier evidence, would reach a different conclusion. The threshold is low and does not require the court to decide whether the underlying asylum claim will succeed.

Where the original decision substantially depended on the claimant’s identity, evidence capable of showing that the identity finding was erroneous may materially alter the assessment of the remaining evidence. The new material must nevertheless be considered in the round, including any unresolved credibility concerns and reservations about documentary authenticity.

The claimant, a Togolese national, had claimed asylum on the basis that he was the son of a deceased senior security officer and had attracted adverse official attention while investigating his father’s death. His claim was rejected by the Secretary of State and an adjudicator, principally because his identity and account were not accepted.

He later produced documents concerning his identity, letters supporting his account, and country evidence. The Secretary of State refused to treat the representations as a fresh claim under paragraph 353 of the Immigration Rules. The issue was whether the new material created a realistic prospect that an immigration judge would reach a different conclusion.

1. Claim allowed. The Secretary of State should have accepted the representations as amounting to a fresh claim under paragraph 353 of the Immigration Rules. The claimant was not thereby found entitled to refugee status; the issue was whether there was a realistic prospect of success before an immigration judge.
2. The court applied the low-threshold approach in WM (DRC) v Secretary of State, [2006] EWCA Civ 1495. The new evidence concerning the claimant’s identity was capable of showing that the original identity finding was erroneous. That finding had been central to the adjudicator’s assessment of the credibility of the claimant’s account and risk on return.
3. The Secretary of State was entitled to maintain reservations about the authenticity and weight of the supporting letters, applying the approach in Tanveer Ahmed. Those reservations did not prevent the material from being capable of significance when considered with the identity evidence and the evidence of political tension in Togo.
4. The unresolved discrepancies and implausibilities in the claimant’s original account remained important. The fresh claim was finely balanced, but the combined effect of the new identity evidence and supporting material meant that an immigration judge might realistically find the core account truthful.
5. The court gave guidance concerning the claimant’s wife’s absence of supporting evidence. Her evidence might be provided confidentially or in a manner addressing her stated concerns. If the evidential gap remained, an immigration judge might draw the same adverse conclusion as the original adjudicator.
6. An anonymity order was made. The defendant was ordered to pay the claimant’s costs, subject to detailed assessment if not agreed.

The judgment records that the claimant’s asylum claim had been rejected by the Secretary of State and that an adjudicator dismissed his appeal. No citation for the adjudicator’s decision is stated in the judgment. The Administrative Court allowed the judicial review claim and held that the representations should have been treated as a fresh claim.