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

Under rule 353 of HC 395, further submissions constitute a fresh claim only where they contain material not previously considered and, taken with the earlier material, create a realistic prospect of success. The decision-maker must ask whether a notional immigration judge might reach a different conclusion on the evidence as a whole. The question is whether success might occur, not whether it would occur. New corroborative evidence must be assessed against the primary evidence and does not automatically establish a realistic prospect of success. Previous credibility difficulties remain relevant, although they must not be treated as immutable findings. The court reviews whether the correct question was asked, whether the evidence was considered in the round with anxious scrutiny, and whether the decision was irrational.

The claimant, a failed Cameroonian asylum seeker, sought judicial review of the Secretary of State’s refusal to treat further representations as a fresh claim under rule 353 of HC 395. The representations principally relied on a medical report prepared by Dr Leggatt. The claimant contended that the Secretary of State had undervalued its corroborative significance, applied too demanding a standard, and treated earlier adverse credibility findings as conclusive.

The claimant’s original asylum appeal had been dismissed by an immigration judge on 4 May 2005, and a further appeal had subsequently been refused. The central issue was whether the new medical evidence, considered with the previous material, created a realistic prospect that an immigration judge might reach a different conclusion.

1. Application dismissed. The Secretary of State’s decision was lawful and rational.
2. Rule 353 required consideration of whether the new material, taken with the material previously considered, created a realistic prospect of success. The decision-maker had to approach the matter by asking what a notional immigration judge might find on a fresh consideration of all the evidence, rather than by asking how individual earlier findings might be altered. The relevant word was “might”, not “would”, as explained in AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535 and Kurtaj v Secretary of State for the Home Department [2007] EWHC 221 (Admin).
3. The applicable standard for assessing both the ultimate risk and the underlying facts was reasonable likelihood, rather than the balance of probabilities. That was common ground and accorded with Kaja v Secretary of State for the Home Department [1994] UKIAT 11038.
4. Medical evidence had to be assessed by reference to the primary evidence it purported to corroborate. The terms “reasonably likely” and “consistent” in Dr Leggatt’s report indicated that the reported symptoms were one possible explanation among others. They did not identify the most likely explanation or exclude competing causes. The observations in SA v Secretary of State for the Home Department [2006] EWCA Civ 1302 imposed no new special standard; they reflected ordinary common sense.
5. The Secretary of State was entitled to recognise that serious credibility difficulties remained. Earlier findings were not treated as immutable or as a “given”, but neither did the new report require the decision-maker to ignore difficulties that remained relevant on a fresh assessment.
6. The Secretary of State had asked the correct question, considered the evidence in the round, applied anxious scrutiny, and reached a conclusion that was not irrational. Although the judge considered that a fresh hearing would have been appropriate if there had been a realistic prospect of establishing a risk of detention engaging Article 3, that condition was not met.
7. The claimant was ordered to pay 80 per cent of the defendant’s costs, assessed on the standard basis if not agreed, subject to the usual restraint on enforcement for public funding.

The judgment was a first-instance judicial review decision. The judgment records that the original asylum appeal was dismissed by an immigration judge on 4 May 2005 and that a request for a further appeal was subsequently rejected. Permission to apply for judicial review was initially refused on paper and later granted at an oral hearing.