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

Under rule 353 of the Immigration Rules, 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. Judicial review focuses on whether the Secretary of State asked the correct question and applied anxious scrutiny. Subject to those requirements, the decision is reviewable only on Wednesbury grounds.

Country-guidance risk factors must be assessed individually and cumulatively, against the claimant’s particular profile and current objective evidence. An expert report need not be accepted where its conclusions are unsupported, speculative or insufficiently connected to the claimant’s evidence.

The claimant, a failed asylum seeker from Sri Lanka, sought judicial review of the Secretary of State’s refusal to treat further submissions as a fresh asylum claim. The submissions relied on alleged continuing risk from the Sri Lankan authorities because of past arrests and from the LTTE because of alleged family targeting and letters inviting attendance at meetings.

The Secretary of State reconsidered the matter and maintained the refusal in a letter dated 11 December 2007. The issue was whether she had applied the fresh-claim test correctly, given the country-guidance decisions in LP (Sri Lanka CG) and PS (Sri Lanka CG), and whether her conclusion was irrational.

1. Application dismissed. The Secretary of State had asked the correct question under rule 353, directed herself by the relevant authorities and given the claim anxious scrutiny. The remaining issue was whether the decision was irrational.
2. The approach in WM (DRC) v Secretary of State for the Home Department required the Secretary of State to ask whether an immigration judge, applying anxious scrutiny, might realistically find a real risk of persecution. Her decision was otherwise challengeable only on Wednesbury grounds.
3. As to risk from the Sri Lankan authorities, LP (Sri Lanka CG) required the identified risk factors to be considered individually and cumulatively, while recognising that each case depended on its own facts. The claimant’s arrests had been assessed by the earlier adjudicator as principally round-ups or relating more to his brother. He had been released without conditions after the relevant detention and had not been shown to have attracted continuing official interest. The Secretary of State was entitled to conclude that he lacked the weightier risk factors identified in LP (Sri Lanka CG).
4. As to LTTE risk, PS (Sri Lanka CG), as analysed in R (Sinnarasa) v Secretary of State for the Home Department, remained the essential starting point. Its continuing utility had not been displaced by later material, although every case required assessment against current evidence. The claimant’s circumstances fell substantially short of those in Sinnarasa and did not bring him within the risk categories identified in PS (Sri Lanka CG).
5. The Secretary of State was entitled to approach the letters and Dr Smith’s report cautiously. The report had been prepared for the claimant’s brother, did not establish the letters’ authenticity and contained unsupported conclusions. The lack of independent evidence explaining how the claimant obtained the letters was a material consideration. The refusal of a fresh claim was therefore rational and lawful.