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

For further submissions under paragraph 353 of the Immigration Rules to amount to a fresh claim, they must contain material not previously considered which, together with earlier material, creates a realistic prospect of success before an immigration judge. The Secretary of State must ask the correct question and apply anxious scrutiny to all relevant facts. Judicial review is conducted on general Wednesbury grounds, though not confined to irrationality. Failure to consider material evidence of prolonged detention, ill-treatment and potentially available official records may make a different outcome realistically possible and render the decision unlawful.

RS, a Sri Lankan Tamil who had claimed involvement with the LTTE, had an earlier asylum claim refused and his appeal rights exhausted. After removal directions were issued, he made further submissions based principally on deterioration in the security situation. The Secretary of State repeatedly decided that they did not amount to a fresh claim.

In the present judicial review proceedings, the challenge was confined to the Secretary of State’s decision of 18 November 2008. The Administrative Court concluded that she had asked the correct question and applied anxious scrutiny. The issue on appeal was whether the decision adequately considered the appellant’s accepted history of prolonged detention and ill-treatment, and the possibility that records of that detention remained available to the Sri Lankan authorities.

Appeal allowed. The Court of Appeal quashed the Secretary of State’s decision and held that the current claim constituted a new claim.

1. Applicable test. Under paragraph 353 of the Immigration Rules, further submissions are significantly different only where their content has not already been considered and, taken with the earlier material, creates a realistic prospect of success before an immigration judge. The threshold is modest. The question is not whether success is more likely than not. The principles in WM (DRC) v SSHD and SSHD v AR (Afghanistan) [2006] EWCA Civ 1495 and AK (Afghanistan) v SSHD [2007] EWCA Civ 535 were applied.
2. Judicial review. The Secretary of State’s decision remains her own. The reviewing court must ask whether she asked the correct question and whether she addressed it with anxious scrutiny. The court may intervene on general Wednesbury grounds, not merely for irrationality, as explained through R (Onibiyo) v SSHD [1996] Q.B. 768.
3. Application. Although the Secretary of State had asked the correct question and analysed the LP categories, she had not specifically considered the appellant’s four-month detention at Joseph camp, his alleged ill-treatment there, or the likelihood that a record of the detention remained available to the authorities. Those omissions meant that the decision had not been made after full and proper consideration of the relevant facts. It was not fanciful to suppose that a new immigration judge might reach a different conclusion. The approach in R (Veerasingham) v SSHD [2008] EWHC 3044, including its treatment of the real possibility of continuing official records, materially assisted the court. That approach was also identified as consistent with NA v United Kingdom (Application No. 25904/07).
4. Order. The Secretary of State’s decision was quashed. The current submissions were held to constitute a fresh claim. Lord Justice Lloyd agreed. The formal order was: application granted.

• Court of Appeal (Civil Division): allowed the appeal, quashed the Secretary of State’s decision of 18 November 2008 and held that the current claim constituted a fresh claim.
• Administrative Court: Mr Stuart Isaacs QC concluded that the Secretary of State had asked the correct question and applied anxious scrutiny. The Court of Appeal disagreed as to the adequacy of the scrutiny.