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

For a fresh asylum claim under rule 353 of the Immigration Rules, the question is whether the new material creates a realistic prospect that an immigration judge, applying anxious scrutiny, would reach a different conclusion on the risk at the date of the refusal. An earlier determination is the starting point, including accepted primary facts and material inferences, but those inferences are not conclusive. The risk must be reassessed in the light of current country guidance. Informal detention and escape may be relevant, but their significance depends on the circumstances, including the level and nature of detention and the evidence about official records. A possibility that an appeal might succeed must be more than fanciful, but subsequent country guidance may show that the earlier inference of risk can no longer properly be drawn.

The appellant, a Sri Lankan Tamil, challenged the Secretary of State’s refusal to treat further representations made in 2006 as a fresh asylum claim under rule 353 of the Immigration Rules. His original asylum appeal had been allowed by an adjudicator in 2002, who accepted that he had been detained and tortured by the Sri Lankan army and inferred a measurable risk arising from records of his detention and escape. The Immigration Appeal Tribunal overturned that decision, and the Court of Appeal dismissed a further appeal in 2004.

Following further representations based principally on deteriorating conditions in Sri Lanka, the Secretary of State issued a final refusal on 19 November 2008. Mr Ian Dove QC dismissed the judicial review challenge in the Administrative Court. The central issue was whether, taking the first determination as the starting point and applying current country guidance, an immigration judge might realistically reach the same favourable conclusion as the original adjudicator.

1. Appeal dismissed. The Administrative Court was right to reject the challenge to the Secretary of State’s refusal to treat the representations as a fresh claim under rule 353 of the Immigration Rules.
2. The first determination is the starting point for a subsequent appeal. The immigration judge would have to accept the original adjudicator’s findings on the basic facts and would begin with the adjudicator’s inference that the detention and escape might have been recorded and that checking the record might expose the appellant to detention and torture.
3. That starting point is not conclusive. The immigration judge must assess the present risk as at the date of the Secretary of State’s decision. The original adjudicator’s reference to the passage of time was understood as relating to the likelihood of records being checked, or the authorities’ response if they were checked, rather than to the continued existence of the records themselves.
4. Current country guidance materially affected the assessment. In LP, the informal nature of detention and the low level and relaxed character of the later custody indicated a risk below the level of a real risk. The first three weeks of detention and alleged torture remained significant because they engaged Article 3, but the later conditions suggested that the appellant had not been regarded as a person of serious interest. AM also cast substantial doubt on whether a record of the detention and escape existed.
5. Had the original adjudicator considered the later country guidance, he could not properly have inferred that the detention and escape were recorded, or concluded that any such record would create a material risk of detention and torture on return. The possibility of a successful new appeal was therefore not realistically established.

• Court of Appeal (Civil Division) — Appeal from the Administrative Court dismissed.
• Administrative Court, Queen’s Bench Division — Mr Ian Dove QC dismissed the judicial review claim on 25 November 2008.
• Immigration Appeal Tribunal — Allowed the Secretary of State’s appeal against the adjudicator’s determination, finding no reasonable likelihood of persecution or human-rights infringement on return.
• Court of Appeal — The appellant’s further appeal from the Immigration Appeal Tribunal was dismissed on 17 March 2004.