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

On an application for judicial review of a refusal to treat further representations as a fresh claim, the court’s function is supervisory rather than appellate. The question is whether the decision-maker asked whether the new material created a realistic prospect of success before an Immigration Judge and addressed that question with anxious scrutiny. In assessing risk on return to Sri Lanka, low-level past involvement with the LTTE, ethnicity, lengthy absence, detention, escape after payment of a bribe and scarring must be assessed cumulatively. The central issue is whether the authorities would regard the individual as having been involved with the LTTE sufficiently significantly to warrant detention or interrogation, creating a real risk of torture and breach of Article 3. A decision within the range of lawful responses cannot be quashed merely because the court might have reached a different conclusion.

The claimant, a Sri Lankan Tamil, arrived in the United Kingdom in 2001 and claimed asylum. An adjudicator allowed his appeal, but the Immigration Appeal Tribunal allowed the Secretary of State’s appeal in 2003, finding that the improved security situation meant that he no longer faced a real risk on return.

In 2003 the claimant made further representations. The Secretary of State initially decided in 2007 that they did not amount to a fresh claim. During the judicial review proceedings, the deteriorating situation in Sri Lanka and the decision in LP [2007] UKAIT 00076 led to reconsideration. A letter dated 25 February 2008 maintained the refusal.

The central issue was whether the Secretary of State was entitled to conclude that the new country information, taken with the claimant’s previously considered history, did not create a realistic prospect of success before an Immigration Judge.

1. Claim dismissed. The amended challenge to the decision letter of 25 February 2008 was admitted despite its lateness. The letter was treated as the operative decision under challenge, applying Turgut v Secretary of State for the Home Department [2000] Imm AR 306.
2. The Secretary of State asked the correct question under WM v Secretary of State for the Home Department [2006] EWCA Civ 1495: whether the further material, considered with the existing material, created a realistic prospect of success before an Immigration Judge. The decision was subject to review on Wednesbury grounds, not an appellate reconsideration of the merits.
3. The relevant risk inquiry was whether one or more factors indicated that the Sri Lankan authorities would regard the claimant as someone who may have been involved with the LTTE sufficiently significantly to warrant detention or interrogation. If detention and interrogation were likely, torture and a breach of Article 3 could follow. The court accepted the formulation in R v Thangeswarajah [2007] EWHC 3288.
4. The Secretary of State considered the claimant’s low-level LTTE involvement, lengthy detention and ill-treatment, alleged identification as a Black Tiger, escape after payment of a bribe, scarring, ethnicity, illegal departure and asylum claim. The country guidance in AM and SS v Secretary of State for the Home Department [2008] UKAIT 00063 was also relevant, including the limited evidence that all persons previously detained were recorded on the authorities’ database.
5. The Secretary of State was entitled to conclude that the claimant’s low-level profile and long absence meant that he was unlikely to attract adverse attention, even if a record of detention remained. The decision had addressed the correct question with anxious scrutiny and was lawful. Judicial review was therefore dismissed, with the claimant ordered to pay the defendant’s costs.