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

A decision that further asylum or human-rights submissions do not amount to a fresh claim under paragraph 353 of the Immigration Rules is reviewed on Wednesbury grounds, with anxious scrutiny. The court does not determine the fresh-claim question for itself as a precedent fact.

A realistic prospect of success means a prospect which is more than fanciful. The Secretary of State must give reasons showing that this low threshold was applied to the further submissions. General reasons for rejecting the merits cannot necessarily supply adequate reasoning on the distinct fresh-claim question.

The appellant, a Sri Lankan Tamil whose original asylum claim had failed, made further representations based on a deterioration in conditions in Sri Lanka and fresh medical evidence. The Secretary of State rejected the representations on their merits and decided that they did not constitute a fresh claim under paragraph 353 of the Immigration Rules.

Blair J dismissed the application for judicial review, holding that the decision was reviewable only on Wednesbury grounds, informed by anxious scrutiny. The appellant challenged both that approach and the adequacy of the Secretary of State's reasoning. The appeal raised whether the court should determine the existence of a fresh claim for itself and whether the decision letter adequately addressed the realistic-prospect-of-success threshold.

1. Appeal allowed. The Secretary of State's decision was quashed, and the matter was returned for a fresh determination of whether the further representations amounted to a fresh claim. Wilson LJ and Lord Neuberger MR agreed with Laws LJ.

2. The correct supervisory approach to a decision under paragraph 353 of the Immigration Rules is the Wednesbury test, tempered by anxious scrutiny. WM (DRC) [2007] IAR 337 and Cakebay [1999] Imm AR 176 established that approach. The court does not decide for itself, as a matter of precedent fact, whether the representations constitute a fresh claim.

3. The contrary observations in TR (Sri Lanka) [2008] EWCA Civ 1549 were obiter. In any event, the court remained bound by WM. The opinions in ZT (Kosovo) [2009] 1 WLR 348 did not establish either that the paragraph 353 test admits only one possible answer or that review should proceed otherwise than on Wednesbury principles.

4. The realistic-prospect-of-success threshold requires only a prospect which is more than fanciful. That understanding, stated in AK (Sri Lanka) [2009] EWCA Civ 447, was consistent with the Wednesbury approach and the duty of anxious scrutiny.

5. Anxious scrutiny required adequate reasoning on the distinct and critical question whether the further material had a realistic prospect of success before the immigration tribunal. The decision letter did not show that the Secretary of State had applied the more-than-fanciful threshold. Its earlier assessment of the merits did not cure that omission, particularly when it did not expressly address the appellant's detention and ill-treatment. The decision was therefore unlawful for want of adequate reasoning.

1. Court of Appeal (Civil Division): The appeal was allowed. The Secretary of State's decision was quashed, and the fresh-claim question was returned for redetermination.

2. Administrative Court, Queen's Bench Division: Blair J dismissed the application for judicial review on 12 November 2008. He held that the Secretary of State's paragraph 353 decision was reviewable on Wednesbury grounds and had received sufficient anxious scrutiny.