Veerasingam v SSHD

Fresh representations amount to a fresh asylum claim where they disclose a material change of circumstances and a realistic prospect that an immigration judge would allow the claim. The assessment is for the Secretary of State, subject to anxious scrutiny on judicial review, and the threshold is modest.

In assessing risk to a Tamil returnee, the relevant factors must be considered individually and cumulatively. Previous prolonged detention, ill-treatment, perceived LTTE support and the possibility that official records remain accessible may establish a realistic prospect of protection succeeding. The passage of time is not determinative. The decision-maker must also take relevant European Court of Human Rights judgments into account when considering Article 3.

The claimant, a Sri Lankan Tamil from northern Sri Lanka, challenged repeated decisions that his further representations did not constitute a fresh claim under paragraph 353 of the Immigration Rules. His original asylum claim had been refused in 2005, although the immigration judge accepted the core account of repeated detention by the Sri Lankan authorities.

The subsequent representations relied on deteriorating conditions, country guidance, expert evidence and the claimant’s history of prolonged detention, alleged ill-treatment, LTTE associations and reporting requirements. The central issue was whether a properly directed Secretary of State could conclude that there was no realistic prospect of an immigration judge finding a real risk of persecution or treatment contrary to Article 3 on return to Colombo.

1. The decisions were quashed. The claimant’s fresh representations could not reasonably be rejected as having no realistic prospect of success before an immigration judge.
2. The test under paragraph 353 of the Immigration Rules requires consideration of whether the fresh material discloses a change of circumstances and whether, if the claim were reconsidered, there is a realistic prospect of success before an immigration judge. The court applies anxious scrutiny, while recognising that the threshold for a fresh claim is modest: [7].
3. The assessment of risk must begin with the facts accepted by the original immigration judge and must consider relevant risk factors individually and cumulatively. Tamil ethnicity and return from London are insufficient by themselves, but previous prolonged detention, ill-treatment, suspected LTTE support, an LTTE relative, reporting requirements and the possibility of a continuing security record were materially relevant: [10]-[16], [20].
4. The court applied the reasoning of NA v United Kingdom. The passage of time did not determine the risk, and the possibility that a returnee’s detention record remained available to airport or other security authorities could not be dismissed as fanciful. The assessment had to address current conditions and the possibility of detention and interrogation contrary to Article 3: [21]-[25], [27].
5. The decision in AN and SS (Tamils-Colombo-Risk?) Sri Lanka CG did not provide a general factual assessment that was dispositive of this case. It was distinguishable because the claimant relied on prolonged detention and a materially different risk profile, and it did not benefit from the subsequent Strasbourg assessment: [26]-[28].
6. The case was to be examined by the AIT in the light of NA v United Kingdom and the further expert evidence. Further relief was to be addressed if not agreed: [29]-[31].

The claimant’s earlier application for judicial review was refused by Mr Justice Crane on 12 March 2007. The Court of Appeal granted permission to apply for judicial review after an oral hearing on 16 August 2007. The present court subsequently considered the amended claim and quashed the defendant’s decisions.