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

Under Immigration Rule 353, the decision-maker must first ask whether the further submissions are significantly different from the material previously considered. If so, the decision-maker must then assess whether the new material, taken with the old, creates a realistic prospect of success before an adjudicator. The test is modest and requires anxious scrutiny, but the decision is reviewable only on Wednesbury grounds. A claim based on membership of a particular social group requires consideration of the qualification that persecutory conduct may identify or create the group. Reliance on an authority which did not decide that issue, while failing to consider relevant appellate authority, may render the decision unlawful. An unclear or grammatically defective treatment of that ground may itself show that anxious scrutiny was not applied.

The claimant, a Chinese national, sought judicial review of the Secretary of State’s decision dated 18 August 2006 that his further representations did not amount to a fresh claim. He had withdrawn an earlier statement of evidence and relied on a later account concerning persecution allegedly arising from his wife’s breach of China’s one-child policy, his resistance to a fine and related events.

The claimant challenged the decision on procedural and substantive grounds, including reliance on an unreported tribunal decision, the treatment of political opinion, and the failure to consider membership of a particular social group. The central issue was whether the Secretary of State had lawfully applied Rule 353 and had assessed the asylum claim with anxious scrutiny.

1. Fresh claim test. Rule 353 required the Secretary of State to consider the further material together with the material previously considered. The decision-maker had first to determine whether the material was significantly different. If it was, the decision-maker had to determine whether the combined material created a realistic prospect of success before an adjudicator. The test was modest: certainty was unnecessary, and the assessment had to recognise the real risk of persecution relevant to an asylum claim.
2. Judicial review standard. Although anxious scrutiny was required because an erroneous asylum decision might expose the claimant to persecution, the Secretary of State’s determination could be impugned only on Wednesbury grounds.
3. Procedural grounds. The decision was not based solely on the claimant’s failure to comply with the asylum procedure. Rule 353 applied because his appeal rights had been exhausted. The practice direction relied on by the claimant did not apply to the 2001 tribunal decision cited by the Secretary of State.
4. Political opinion. The authority relied on by the Secretary of State was materially similar to the claimant’s asserted facts and lent weight to the conclusion that refusal to pay a family-planning fine, without more, did not establish persecution for a Convention reason. The authority relied on by the claimant concerning expressed opposition to the state did not apply to the facts asserted.
5. Particular social group. The Secretary of State’s wording concerning this ground was so defective that it afforded no confidence that the issue had been properly considered. The cited tribunal decision had expressly not considered whether the claimant there belonged to a particular social group. The Secretary of State also failed to address Chun Lan Liu v SS [2005] EWCA Civ 249 and the qualification in Shah and Islam [1999] 2 AC 629, namely that persecutory conduct may identify or create such a group.
6. The decision dated 18 August 2006 was quashed. The matter was remitted to the Secretary of State for further consideration of the claimant’s claim based on membership of a particular social group.

This was a first-instance judicial review. The judgment does not state any further appellate history.