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

Under rule 353 of the Immigration Rules, further submissions constitute a fresh claim where they are significantly different from material previously considered and, taken with that material, create a realistic prospect of success before an immigration judge. The threshold is modest, but the Secretary of State must apply anxious scrutiny. Judicial review remains supervisory: the court must not substitute its own merits assessment, although it may intervene on Wednesbury grounds where the prescribed questions were not properly addressed. Country-guidance risk factors are not a checklist and are neither exhaustive nor automatically determinative. They must be assessed individually and cumulatively against the claimant’s particular profile.

The claimant, a Sri Lankan Tamil medical practitioner, challenged the Secretary of State’s refusal to treat further representations as a fresh claim for asylum and human-rights protection. His original claim had been refused and his appeal dismissed. The further material relied principally on deteriorating conditions in Sri Lanka and subsequent country-guidance decisions concerning risks to returning Tamils, including LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKIAT 00076. The central issue was whether the material created a realistic prospect that an immigration judge would find a real risk of persecution or human-rights ill-treatment on return.

1. Outcome. The claim for judicial review failed. The Secretary of State correctly concluded that the further submissions amounted to a fresh claim because they contained new country material, but that there was no realistic prospect of an immigration judge finding a real risk of persecution or human-rights ill-treatment on return.
2. Applicable approach. Rule 353 of the Immigration Rules requires a two-stage inquiry: whether the submissions are significantly different from material previously considered, and whether the totality creates a realistic prospect of success before an immigration judge. The court adopted WM (DRC) and AR v SSHD [2006] EWCA Civ 1495. Review is on Wednesbury grounds, informed by anxious scrutiny. Judicial review is not an appeal or merits review.
3. Risk assessment. The guidance in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKIAT 00076 and NA v United Kingdom [Application no. 25904/07] required an individual assessment. The listed factors were not exhaustive or a checklist and had to be considered individually and cumulatively.
4. Application. Tamil ethnicity, return from London, absence of identity documents, an asylum claim abroad, and previous detention followed by release on payment of a bribe did not establish the necessary risk on the facts. The Secretary of State considered the changed country conditions and the cumulative material. Her decision was not irrational. The claim was dismissed.