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

Under paragraph 353 of the Immigration Rules, “further submissions” means representations advanced on asylum or human rights grounds. They may be short or long, reasoned or unreasoned. They need not themselves be new or substantial.

The decision-maker must first ask whether their content has already been considered. If it has not, the decision-maker must assess the new and previously considered material together. The question is whether there is a realistic prospect that an immigration tribunal would allow the claim. That requires anxious scrutiny. A realistic prospect means more than a fanciful prospect, although the Secretary of State may reject the claim on its merits.

The appellant, a Sri Lankan Tamil, had unsuccessfully claimed asylum and later relied on article 8 of the European Convention on Human Rights. An adjudicator accepted in 2003 that she had established a private life in the United Kingdom, but held that her removal was proportionate.

Further representations subsequently relied on her lengthy residence, deteriorating mental health, suicide risk and increasing dependence on her sister. The Secretary of State rejected her application and removed her without considering whether those representations amounted to a fresh claim under paragraph 353 of the Immigration Rules. Cranston J dismissed her application for judicial review.

The Court of Appeal considered whether the later material constituted “further submissions” and whether a reasonable Secretary of State could find that it created a realistic prospect of success before the Asylum and Immigration Tribunal.

1. Appeal allowed unanimously. The Secretary of State had failed to address whether the material submitted after the earlier appeal amounted to a fresh claim under paragraph 353 of the Immigration Rules. Laws LJ delivered the judgment, with which Thomas LJ and Mann J agreed.

2. “Further submissions” means representations advanced on asylum or human rights grounds. Representations may be short or long, and reasoned or unreasoned. They need not contain new material because paragraph 353 separately requires the Secretary of State to determine whether their content is significantly different from material previously considered. Nor must the representations cross a separate threshold of substance. Bare or weak assertions may instead be rejected readily when the prescribed assessment is undertaken.

3. The reasonable Secretary of State was bound to recognise that further human-rights submissions had been made. Although the correspondence repeatedly invoked long residence, it also relied on article 8 through evidence of deteriorating health, dependence on the appellant’s sister, family and private life, and proportionality. A claim based solely on long residence under paragraph 276B would fall outside paragraph 353.

4. The paragraph 353 assessment has two stages. First, the Secretary of State must decide whether the content of the further submissions has already been considered. If it has not, she must consider whether that material, together with the previously considered material, creates a realistic prospect of success before the tribunal. New material may support a different category of asylum or human-rights claim, or may introduce new facts supporting the same category of claim.

5. The new evidence concerning deteriorating mental health and increasing dependence on the appellant’s sister had not previously been considered as part of her article 8 case. The Secretary of State had considered some of that evidence in her decision letter, but had failed to recognise that it engaged paragraph 353.

6. The realistic-prospect threshold is modest and requires anxious scrutiny. A realistic prospect means more than a fanciful prospect. The court did not compel the Secretary of State to recognise a fresh claim or order the appellant’s return. It held that a reasonable Secretary of State could conclude that the combined material had more than a fanciful prospect of succeeding before the tribunal and should reconsider the matter accordingly.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The court held that the Secretary of State had failed to consider whether the appellant’s further representations engaged paragraph 353 of the Immigration Rules. [2009] EWCA Civ 447

2. Administrative Court: Cranston J dismissed the application for judicial review on 10 September 2008. No neutral citation is stated in the judgment.