Shylolibavan v SSHD

Under Rule 353 of the Immigration Rules, further submissions constitute a fresh claim only if they contain material not previously considered and, taken with the earlier material, create a realistic prospect of success before an immigration judge applying anxious scrutiny. Judicial review asks whether the Secretary of State addressed that question and scrutinised the evidence lawfully.

Immigration detention must be a reasonable and proportionate exercise of the statutory power. The absence of a lawful basis to remain, or the ability to tick detention-form boxes, does not itself justify detention. The decision-maker must identify and support the reasons for detention, consider the individual circumstances and reasonable alternatives, and provide evidence enabling the court to assess legality.

The claimant, a Sri Lankan Tamil, had unsuccessfully claimed asylum and appealed to the AIT in 2005. He later made further submissions based principally on deterioration in Sri Lanka and matters including his former LTTE involvement, escape from detention, scarring and fingerprinting.

The Secretary of State refused to treat the submissions as a fresh claim. The claimant sought judicial review, also alleging that his detention from 3 to 28 September 2007 was unlawful. The issues were whether the refusal was irrational under Rule 353 and whether the detention was a lawful exercise of the Immigration Act 1971 power.

1. Fresh claim. The application failed on the asylum issue. Applying WM (DRC) v SSHD [2006] EWCA Civ 1495, the Secretary of State had to ask whether the new material was significantly different and, if so, whether it created a realistic prospect that an adjudicator applying anxious scrutiny would find a real risk of persecution.
2. The Secretary of State had adequately considered the deterioration in Sri Lanka and the claimant’s individual circumstances. The approach was consistent with LP (Sri Lanka CG) [2007] UKAIT 00076, AS and SS (Sri Lanka CG) [2008] UKAIT 00063 and NA v UK ECHR [2008] Appeal No. 25904/07. The relevant risk factors had to be assessed individually and cumulatively; the general deterioration did not itself establish an individual risk.
3. The submissions concerning low-level LTTE involvement, escape, scarring and fingerprinting did not create a realistic prospect of success. The evidence did not show that fingerprinting in 1999 would connect the claimant with detention on return, and the expert report did not materially challenge the evidence relied upon by the Secretary of State.
4. Detention. The detention claim succeeded. The court agreed with the approach in Karas & Miladinovic v SSHD [2006] EWHC 747 (Admin) that detention had to be reasonable and proportionate. The Secretary of State’s decision was reviewable under ordinary public-law principles, taking account of the operational policy.
5. SK (Zimbabwe) v SSHD [2008] EWCA Civ 1204 established that compliance with the Manual was not itself a statutory condition precedent to detention. It did not remove the court’s duty to scrutinise the initial exercise of the power. Here, the decision appeared to precede the claimant’s attendance, relied on unsupported or unreasonable detention factors, failed adequately to consider alternatives and could not be justified by later reliance on imminent removal.
6. The detention from 3 to 28 September 2007 was therefore unlawful.

The AIT rejected the claimant’s original asylum appeal on 7 November 2005. The present proceedings were a first-instance judicial review of the Secretary of State’s later refusal to treat further submissions as a fresh claim and of the claimant’s detention.