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

Under Rule 353 of HC 395, fresh submissions amount to a fresh claim where they are significantly different from material previously considered and create a realistic prospect of success. The decision-maker must assess the potential effect of the new material on a possible appeal, rather than determine the hypothetical appeal itself. Medical evidence may materially strengthen an asylum claim based on sexual violence, particularly where it includes physical findings, diagnoses and independent expert observations. The court must review the decision with anxious scrutiny. A claim should not be rejected summarily where the new evidence could realistically be accepted by a properly self-directing immigration judge.

The claimant, a Burundian national, challenged decisions of the Secretary of State dated 28 September and 19 October 2006. Those decisions concluded that further medical evidence and representations did not amount to a fresh asylum claim under Rule 353 of HC 395.

Her original asylum appeal had been dismissed by an immigration judge, who rejected her account of rape and ill-treatment and placed no weight on an earlier psychiatric report. The later material included reports from Dr Arnold, a specialist in wound examination, identifying scars, injuries, PTSD and sexually related medical conditions. The central issue was whether that material created a realistic prospect that an immigration judge could reach a different conclusion.

1. The fresh claim issue was allowed. The Secretary of State was not entitled to conclude that the further submissions lacked the capacity to lead an immigration judge to a different result.
2. Rule 353 of HC 395 requires the decision-maker first to consider whether the material is fresh and significantly different, and then to assess whether, taken with the earlier material, it creates a realistic prospect of success. The question is not whether the Secretary of State considers the claim likely to succeed, but whether a possibly self-directing immigration judge could reach a different conclusion applying the reasonable degree of likelihood standard.
3. The Secretary of State must engage with the substance of the fresh evidence, but must maintain a degree of distance from deciding the hypothetical appeal. Some weaknesses can only properly be assessed at a full appeal hearing, including through cross-examination. The court reviews the overall assessment with anxious scrutiny.
4. The new medical evidence was materially different. Dr Arnold recorded four areas of scarring and injury, independently assessed PTSD, and addressed HIV, gynaecological infection and abnormal cervical cell activity. The evidence was not merely a repetition of the claimant’s narrative. It relied in significant part on physical observations, medical conditions and expert assessment.
5. Medical evidence in sexual-violence claims may be critical. PTSD may both support the account of sexual violence and provide a medical explanation for a confused, fragmented, delayed or inconsistent narrative. The absence of an earlier sexual examination did not justify treating the later evidence as incapable of acceptance.
6. The decision was quashed and the matter was to return to an immigration judge. The detention and damages claim was severed and transferred to the County Court as an ordinary action. The defendant was ordered to pay the claimant’s costs of the fresh claim issue.

The judgment records that the claimant’s original asylum claim was refused by the Secretary of State. An immigration judge dismissed her appeal on 20 January 2006, and an application for reconsideration by the Asylum and Immigration Tribunal was refused. The present judicial review proceeded in the Administrative Court after Collins J granted permission on renewal on 7 March 2007.