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

Under paragraph 353 of the Immigration Rules, further submissions constitute a fresh claim only where they create a realistic prospect of success before an adjudicator applying anxious scrutiny. On judicial review, the court must distinguish between deciding the asylum claim afresh and asking whether the Secretary of State’s assessment was reasonably open to him. A decision may remain lawful overall even if one passage initially misunderstands the substance of the representations, provided the decision-maker has considered the material issue in the round. The possibility that family connections may increase risk on return must be assessed with the claimant’s own history and the objective evidence.

The claimant, a Turkish asylum seeker and low-level supporter of HADEP, challenged the Secretary of State’s August 2007 decision that further representations did not amount to a fresh claim under paragraph 353 of the Immigration Rules. The representations relied principally on the refugee status granted to a cousin and uncle, arguing that the claimant’s relationship with them, together with his own political history, created a risk on return. The Secretary of State considered the claimant’s history, the relatives’ cases and country material, but concluded that there was no realistic prospect of success. The central issues were whether the correct legal test had been applied and whether the conclusion was Wednesbury unreasonable.

1. Application dismissed. The Secretary of State’s August 2007 decision contained no error of law and was not Wednesbury unreasonable.
2. Paragraph 353 of the Immigration Rules required consideration of whether the further submissions, taken with the previous material, created a realistic prospect that an adjudicator applying anxious scrutiny would find a real risk of persecution. The Secretary of State had addressed that question in substance. The court applied the guidance in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495.
3. The Secretary of State had initially treated the representations as a comparison between the claimant’s case and those of his cousin and uncle. That missed the central point, which was whether the claimant’s relationship with them, coupled with his own history, increased his risk. Nevertheless, the decision letter, read as a whole, considered that issue by reference to the objective evidence and the country guidance.
4. The court applied the approach described in IK (Turkey CG) [2004] UKIAT 00312. The claimant would probably be questioned on return and his family connections might become known. However, the Secretary of State was entitled to conclude that the material, viewed in the round, did not create a realistic prospect of success. The court was not entitled to substitute its own assessment of the asylum claim.
5. The claimant’s application was dismissed. Permission to appeal was refused because no error of law had been identified and the proposed appeal had no prospect of success. No consequential costs order was sought.

The judgment records that Ouseley J granted permission to apply for judicial review on 31 August 2006. The Secretary of State subsequently reconsidered the matter and issued the decision letter dated 7 August 2007, which was the decision reviewed by the court.