A, 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 if their content has not already been considered and, taken with the earlier material, creates a reasonable prospect of success. The assessment requires anxious scrutiny, but judicial review remains concerned with legality and rationality rather than the merits. Risk factors in an asylum claim must be assessed cumulatively. Tamil ethnicity, scarring and lack of identity documents may be relevant, but none necessarily establishes risk independently. A decision-maker may attach little weight to a missing identity card and may conclude that historic detention, alleged LTTE links and family connections do not create a realistic prospect of success. The application was therefore refused.

The claimant, a Tamil citizen of Sri Lanka, sought judicial review of the Secretary of State’s refusal to treat further submissions as a fresh asylum claim. His submissions relied on changed country conditions, alleged past detention and torture, scarring, the absence of identity documents, his sister’s LTTE activities and country evidence concerning records held by the Sri Lankan authorities.

The Secretary of State applied paragraph 353 of the Immigration Rules and concluded that the material did not create a realistic prospect of success before an immigration judge. The central issue was whether that conclusion was irrational and whether the paragraph 353 conditions were satisfied.

1. Application refused. The Secretary of State’s decision was not irrational, and the conditions in paragraph 353 of the Immigration Rules were not satisfied.
2. The court accepted the summary of paragraph 353 in WM (DRC) v SSHD and SSHD v AR (Afghanistan) [2006] EWCA Civ 1495. The Secretary of State must consider whether the further material is significantly different because it has not previously been considered and, if so, whether it creates a realistic prospect of success when combined with the earlier material.
3. The evidence concerning records held by the Sri Lankan authorities was inconclusive. It was rational to conclude that the claimant had not shown a realistic possibility that records of his historic activities, detention or relationship with his sister would expose him to persecution or ill-treatment on return.
4. The court treated the risk factors cumulatively. Tamil ethnicity was relevant in combination with other matters but was not, by itself, said to establish a well-founded fear. Scarring could contribute to cumulative risk, but did not independently establish risk. The absence of an identity card carried little weight, even when considered with other factors.
5. The judicial review court was not required to decide whether other decision-makers might have reached a different view. The question was whether the Secretary of State’s assessment was irrational. It was not.

The judgment records earlier asylum and immigration decisions, including refusal of asylum by the Secretary of State, dismissal of the claimant’s appeal by an adjudicator, and refusal of permission to appeal to the Immigration Appeal Tribunal. Lloyd J later granted permission to apply for judicial review of the Secretary of State’s supplementary decision dated 2 August 2007. The present court refused the application.