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

Under paragraph 353 of the Immigration Rules, further submissions amount to a fresh claim only where they are significantly different from material previously considered and, taken with that material, create a realistic prospect of success. The assessment requires anxious scrutiny and consideration of the evidence in the round.

Different decision-makers may lawfully reach different conclusions on broadly similar evidence. A later country-guidance decision does not, by itself, require an earlier asylum decision to be reopened. The decision-maker must nevertheless consider the guidance, including risk in the home area, internal relocation and the information likely to be available to the authorities on return.

The claimant, a Turkish national, had unsuccessfully claimed asylum. His appeal was dismissed by an adjudicator, and subsequent challenges were unsuccessful. He later submitted further material, including his brother’s successful asylum appeal, evidence concerning his wider political family, an alleged raid on his father’s home, and the country-guidance decision IK (Returnees - Records - IFA) Turkey CG [2004] UKIAT 00312.

The Secretary of State declined to treat the submissions as a fresh claim under paragraph 353 of the Immigration Rules. The central issue was whether the further material created a realistic prospect of success when considered with the previously examined evidence.

1. The application for judicial review was dismissed. The claimant had not shown that the Secretary of State’s conclusion under paragraph 353 of the Immigration Rules was irrational or reached without anxious scrutiny.

2. The court applied the approach in WM (DRC) v Secretary of State for the Home Department [2006] EWHC 1495. The question was whether the new material, considered together with the earlier material, created a realistic prospect of success. That assessment applied both to the Secretary of State and to the reviewing court.

3. The successful asylum appeal of the claimant’s brother was material which had to be considered, but it did not establish a fresh claim. The cases differed materially: the brother had left Turkey because of political sympathies and had engaged in political demonstrations in the United Kingdom. Different conclusions on broadly similar evidence did not, without more, demonstrate an error of law, consistently with Otshudi v Secretary of State for the Home Department [2004] EWCA Civ 893.

4. The evidence concerning the claimant’s political family, the NUFUS system and the raid on his father’s home did not create a realistic prospect of a different outcome. The original adjudicator was entitled to conclude that the claimant was not regarded as a member of a family of PKK members, had no established links with the relevant political organisations and was unlikely to attract continuing political interest.

5. The guidance in IK (Returnees - Records - IFA) Turkey CG [2004] UKIAT 00312 remained persuasive and had to be taken into account, but it did not require old decisions to be reopened. The adjudicator had assessed risk in the home area and had concluded that the claimant could safely relocate to Istanbul. Although the adjudicator had not expressly framed the internal-relocation question in the terms used in [2004] UKIAT 00312, her findings answered it: the claimant was not reasonably likely to be persecuted outside Tunceli.

6. The claimant might be identified on return as a draft evader. That did not amount to a real risk under the Refugee Convention or the Human Rights Convention. The material concerning the GBTS system did not show that his past detention or alleged political associations would lead to arrest or persecution.

7. The court concluded that the material relied upon was not sufficiently significant or different to amount to a fresh claim. The Secretary of State was awarded costs, not to be enforced without leave, and the claimant was permitted to seek detailed assessment of publicly funded costs.

The claimant’s original asylum appeal was dismissed by an adjudicator on 1 December 2004. The Immigration Appeal Tribunal dismissed his challenge on 24 January 2005, and Moses J dismissed statutory review on 14 February 2005. An initial application for judicial review was refused by a single judge. On renewal, Calvert-Smith J granted permission on 29 March 2007. The present judicial review application was dismissed.