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

Under paragraph 353 of the Immigration Rules, the decision-maker must determine whether further submissions are significantly different and, if so, whether they create a realistic prospect of success before an anxious-scrutiny tribunal. Country-guidance risk factors are neither a checklist nor exhaustive. They must be assessed individually and cumulatively against the claimant’s established profile. A failure to address a point expressly does not necessarily make a decision unlawful where the reasoning answers it and there is no proper factual basis for the alleged risk.

The claimant, a Sri Lankan Tamil, had previously had his asylum and human-rights claims rejected. He later made further submissions based on changed conditions in Sri Lanka, relying on country guidance concerning returned Tamils and on NA v The United Kingdom. The Secretary of State rejected the submissions as not amounting to a fresh claim under paragraph 353 of the Immigration Rules. The judicial review challenge concerned whether the decisions applied the correct fresh-claim test with anxious scrutiny, particularly regarding an alleged computerised record of the claimant’s earlier detention.

1. The claim was dismissed. The Secretary of State correctly applied paragraph 353. The task was to decide whether the new material was significantly different and, if so, whether it created a realistic prospect of success when considered with the earlier material.
2. The approach in WM(DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 governed the review. The court had to ask whether the correct question was asked and whether anxious scrutiny was applied to the facts and legal consequences.
3. The guidance in LP (LTTE area-Tamils-Colombo-risk?) Sri Lanka CG [2007] UKAIT 000076, considered alongside R(Sivanesan) v Secretary of State for the Home Department [2008] EWHC 1146 (Admin), AN&SS (Tamils – Colombo – risk?) Sri Lanka CG [2008] UKAIT 00063 and NA v The United Kingdom, required an individual assessment. The listed risk factors were neither exhaustive nor a checklist and had to be assessed individually and cumulatively.
4. Although it would have been desirable to address expressly whether a computerised record of the claimant’s 1998 arrest existed and was available at Colombo airport, the omission did not make the decisions irrational or insufficiently anxious. The country guidance provided no proper factual basis for inferring that such a record would be available for this claimant.
5. The Secretary of State was entitled to conclude that the claimant faced no real risk of persecution or Convention-prohibited treatment and that an appeal would have no reasonable prospect of success. No order for costs was made.

First-instance judicial review in the Administrative Court. Collins J refused permission on 14 May 2007, but permission was granted on renewal on 22 August 2007. The claim was dismissed on the merits.