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

Under paragraph 353, further submissions amount to a fresh claim only 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 Secretary of State must apply that test substantively and evaluate the evidence as a whole. A decision letter is not unlawful merely because it does not address every submission in the claimant’s preferred terms, provided it demonstrates that the correct test was considered and applied. In assessing risk on return, the guidance does not require multiple risk factors in every case; a single factor may suffice in appropriate circumstances.

The claimant, a Sri Lankan Tamil, sought judicial review of the Secretary of State’s refusal to treat further representations as a fresh claim and of the consequential removal directions. Permission had previously been refused on paper by Sir George Newman. The claimant alleged that the Secretary of State had failed to apply paragraph 353 properly, had placed inappropriate weight on the absence of a wanted-list entry, and had misunderstood country guidance concerning risk on return. The central issue was whether the decision letters showed proper consideration of the fresh-claim test and the material relied upon.

1. Application refused. The Secretary of State had not applied the wrong test and had not failed to consider whether the further representations created a realistic prospect of success before an immigration judge.
2. Paragraph 353 required the further submissions to be significantly different from the material previously considered and, taken together with it, to create a realistic prospect of success notwithstanding the earlier rejection. The Secretary of State’s references to paragraph 353 in paragraphs 4 and 23 of the decision letter were properly understood as references to that test.
3. The criticism that the decision focused improperly on the claimant’s absence from a wanted list did not establish legal error. Read as a whole, the relevant passage addressed whether there was evidence that the claimant remained of interest to the Sri Lankan authorities or faced a risk on return.
4. The country guidance in LP did not require several risk factors in every case. In some circumstances a single factor could suffice. That correction did not demonstrate that the Secretary of State had failed to apply the paragraph 353 test.
5. The court rejected the submission that the supplemental letter showed merely that the Secretary of State was carrying out impermissible running repairs. The decision, read as a whole, showed adequate consideration and evaluation of the material relied upon.

The judgment records that permission had previously been refused on paper by Sir George Newman on 7 February. The present decision concerned a renewed application for judicial review.