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

Rule 353 of the Immigration Rules may apply where a person’s earlier asylum claim was refused, the person left the United Kingdom, returned and made a further claim. The rule is not confined to further submissions supporting an extant claim.

The Secretary of State must consider whether the material is significantly different and, taken with the earlier material, creates a realistic prospect of success. On judicial review, the question is whether the Secretary of State asked the correct questions, applied anxious scrutiny and reached a rational conclusion. The court does not decide whether the claim would succeed on its merits. A decision that further submissions do not amount to a fresh claim may therefore stand where the evidence, considered as a whole, gives no realistic prospect of success.

The claimant, an Iraqi national, had previously made an unsuccessful asylum claim and voluntarily returned to Iraq. After returning to the United Kingdom nearly two years later, he made a further asylum claim, alleging that he had subsequently been detained and tortured and relying on an arrest warrant and expert evidence.

The Secretary of State treated the representations as further submissions under rule 353 of the Immigration Rules and concluded that they did not amount to a fresh claim. Permission to seek judicial review was ultimately granted on the questions whether rule 353 applied after departure and return, and whether the Secretary of State had rationally rejected the new material. The central issues were whether the later claim attracted an in-country right of appeal and whether the decision under rule 353 was legally flawed.

1. Claim dismissed. Rule 353 applied even though the claimant had left the United Kingdom after refusal of his earlier claim and had later returned. Its wording required only that an asylum or human rights claim had been refused and that any appeal was no longer pending. A limitation based on the length of the claimant’s absence would substantially rewrite the rule.
2. The purpose of rule 353 supported that construction. The rule provides a framework for preventing serial unfounded claims from generating repeated in-country appeal rights, while preserving an appeal where the Secretary of State accepts that the further submissions constitute a fresh claim or where judicial review successfully challenges the decision.
3. The new allegations and evidence satisfied rule 353(i), because they had not previously been considered. They nevertheless had to satisfy rule 353(ii): taken with the earlier material, they had to create a realistic prospect of success notwithstanding their rejection. The approach in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495; [2007] Imm AR 337 was applied. The Secretary of State had to consider the material with anxious scrutiny and ask whether an immigration judge might allow the claim, rather than simply decide whether she herself considered it meritorious.
4. The Secretary of State rationally rejected the arrest warrant. The document had not been examined in its original form by the expert, the expert’s assessment was equivocal, the claimant’s account had materially changed, and there was inadequate evidence explaining how the warrant came into existence. The Secretary of State was entitled to assess it against the claimant’s previous adverse credibility findings and the evidence as a whole.
5. The treatment of the torture allegation was also lawful. The claimant’s account had been made in the context of an earlier rejected account, and the only supporting evidence was a police doctor’s brief record of alleged torture marks. The Secretary of State was entitled to regard that evidence as insufficient and to conclude that the further submissions did not create a realistic prospect of success. The claimant therefore had no in-country right of appeal against the refusal of the subsequent asylum claim.

• High Court (Administrative Court): permission to seek judicial review was granted by the Court of Appeal after earlier refusal of permission. The substantive claim was dismissed by Mr Justice Cranston.
• High Court (Administrative Court): Wyn Williams J had refused permission on the papers at [2008] EWHC 1032 (Admin).
• Court of Appeal: permission to apply for judicial review was granted on renewed application, including the applicability of rule 353 and the rationality of the Secretary of State’s decision.