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

Under paragraph 353 of the Immigration Rules, the decision-maker must ask whether the further material creates a realistic prospect that an immigration judge would allow the claim. The threshold is modest, but the material must receive anxious scrutiny. The court reviews the decision on ordinary judicial review principles.

The decision-maker must assess the individual claimant’s prospective risk. Country conditions and general risks cannot replace an assessment of the particular facts. Medical evidence may materially alter the factual basis of an earlier decision where it is objectively consistent with the claimant’s account and is not obviously explained otherwise. The application nevertheless fails where, despite that error, the remaining findings do not give rise to a realistic prospect of success.

The claimant, a Turkish national of Kurdish ethnicity, sought judicial review of the Secretary of State’s decision that further submissions did not amount to a fresh asylum or human rights claim under paragraph 353 of the Immigration Rules.

An earlier adjudicator had accepted that the claimant had been arrested, convicted of a weapons offence and would probably have to serve his sentence on return, but had made adverse credibility findings and had not found that he had been tortured. Further medical evidence identified scars said to be compatible with electric-shock torture and beatings. The Secretary of State rejected the evidence as inconsistent and incapable of affecting the earlier findings.

The central issue was whether the Secretary of State had lawfully assessed whether the new material created a realistic prospect of success before an immigration judge.

1. The application was dismissed. The court held that the Secretary of State had asked the correct question under paragraph 353 of the Immigration Rules and that the decision was not unlawful on Wednesbury grounds ([2008] EWHC 2539 (Admin), paras 34–36, 42–45).
2. Following WM (DRC) v Secretary of State [2006] EWCA Civ 1495, the threshold for a fresh claim is modest. The decision-maker must conduct anxious scrutiny and ask whether an immigration judge could realistically conclude that the claimant faces a real risk of persecution or treatment contrary to Article 3. The reviewing court must assess the lawfulness of that decision, rather than determine the asylum claim itself.
3. The court considered that the Secretary of State had wrongly treated Dr Wright’s report as incapable of affecting the factual findings. The report was objectively consistent with the claimant’s account and the earlier witness statement was not inconsistent with it. The Secretary of State had improperly substituted his own assessment for that which an immigration judge might make on the material as a whole (paras 37–39).
4. That error did not determine the application. The risk had to be assessed by reference to the claimant individually, including the accepted facts that his criminal record would be discovered and that he would probably be detained. The country guidance in A (Turkey) [2003] UKIAT 24 and IK [2004] UKAIT 312 did not establish a realistic prospect of Article 3 ill-treatment in this claimant’s particular circumstances. The Secretary of State was therefore entitled to conclude that the new material did not cross the paragraph 353 threshold (paras 28–32, 40–45).
5. The court granted detailed assessment of the claimant’s costs. Permission to appeal was granted on the arguable issue whether paragraph 339 K required the decision-maker to consider expressly the implications of past ill-treatment for future risk; that issue was not finally determined (paras 46–54).

First-instance judicial review. The application for permission was initially refused on the papers, but permission was later granted at an oral hearing by Black J. The substantive application was dismissed by the Administrative Court. Permission to appeal was granted on an arguable issue concerning paragraph 339 K of the Immigration Rules.