SN (Sri Lanka), R (on the application of) v Secretary of State for the Home Department

Paragraph 353 of the Immigration Rules requires two separate inquiries. There must be significant new evidence, and the new material, considered with the earlier material, must give a realistic or more-than-fanciful prospect of success.

The original fact-finding decision remains the benchmark. A fresh claim cannot be used indirectly to reopen unappealed findings of fact. Changed country conditions may be relevant, but they do not assist where those findings negate the asserted risk. The Secretary of State’s assessment is principally one of fact and judgment, subject to review only for conventional public-law error.

The appellant, a Sri Lankan national, claimed asylum after arriving in the United Kingdom in 1999. His claim and subsequent appeal were refused. The original fact-finder found that he had had some involvement with the LTTE, but rejected the alleged level of involvement and found that he was not of continuing interest to either the LTTE or the Sri Lankan authorities.

Further submissions relied on the deteriorating situation in Sri Lanka and the risk of identification at the airport. The Secretary of State rejected them on 23 February 2007 under paragraph 353 of the Immigration Rules. Permission to bring judicial review proceedings was refused by Davis J and, on renewal, by HHJ Mackie QC. The issue before the Court of Appeal was whether the changed country conditions required the original factual findings to be revisited.

The appeal was dismissed. Lord Justice Moses gave the principal reasons, with the Chancellor and Lord Justice Scott Baker agreeing.

1. Paragraph 353 of the Immigration Rules imposes two distinct requirements. The further submissions must contain significant new evidence over and above the material considered when the original claim and appeal failed. The new material, taken together with the earlier material, must then create a realistic, more-than-fanciful prospect of success. This formulation was taken from AK (Sri Lanka) v SSHD [2009] EWCA Civ 447.
2. The Secretary of State, and any court considering judicial review, must examine the original fact-finding decision. It provides the measure for deciding whether the further submissions constitute a genuinely fresh claim or merely seek to attack the original findings.
3. The country guidance in LP (Sri Lanka) CG [2007] UKAIT 00076 remained applicable. It required attention to the individual’s profile, credibility, LTTE involvement, records and the risk of detention at the airport. The Secretary of State had considered those factors, but was entitled to assess them against the unappealed finding that this appellant was not of interest, and had no continuing interest, to the authorities.
4. The court rejected the attempt to rely on an observation in R (Sivarajah Sivanesan) v SSHD [2008] EWHC 1146 (Admin) to undermine the original findings. Fresh-claim proceedings could not be converted into an indirect appeal against those findings. The changed situation in Sri Lanka therefore did not create a realistic prospect of success on the appellant’s case. The Secretary of State’s conclusions were factual and evaluative, and disclosed no conventional public-law error.

Order: Appeal dismissed.

• Court of Appeal (Civil Division): The appeal against refusal of permission for judicial review was dismissed. [2009] EWCA Civ 1500.
• Administrative Court: Davis J refused permission to seek judicial review. HHJ Mackie QC refused permission on oral renewal on 22 January 2008.
• Original asylum proceedings: The Secretary of State refused the asylum claim in June 2001, and the subsequent appeal was unsuccessful. An Article 8(1) appeal was later pursued without challenging the original factual findings.