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

When deciding whether fresh representations amount to a fresh claim under paragraph 353 of the Immigration Rules, the Secretary of State must assess whether an immigration judge has a realistic or reasonable prospect of reaching a different conclusion. The threshold is modest. The assessment requires anxious scrutiny in substance, not merely in form. Relevant circumstances must be considered cumulatively. The exercise cannot be reduced to counting individually satisfied risk or background factors. A single risk factor may suffice, while several factors may still be insufficient. Where the Secretary of State has failed to assess the cumulative effect of the material, the decision is unlawful and may be quashed.

The claimant, a Sri Lankan Tamil, challenged the Secretary of State’s refusal dated 24 November 2007 to treat fresh representations as a fresh claim under paragraph 353 of the Immigration Rules. Her original asylum and human-rights claim had been rejected in 2003, although the adjudicator accepted her account of past detention and LTTE-related activity. The fresh representations relied principally on the changed country situation in Sri Lanka and several factors identified in LP.

Permission was granted by Mr Justice Stadlen on 24 April 2008. After permission, the Secretary of State issued a further letter dated 6 January 2009 addressing more recent authorities and attempting to reinforce the original decision. The central issue was whether the Secretary of State had lawfully assessed the cumulative effect of the fresh material and whether there was a reasonable prospect of success before another immigration judge.

1. Decision quashed. The Secretary of State’s decision was not properly open to her because the material had not been assessed with sufficient anxious scrutiny on a cumulative basis. The claimant was to have her case assessed by a further immigration judge. This did not determine that her claim would succeed.
2. Paragraph 353 required consideration of whether there was a reasonable prospect that another immigration judge would reach a different conclusion in light of the fresh material. Although the January 2009 letter corrected the form of the question by referring to the prospect of persuading an immigration judge, it remained substantially a tactical attempt to reinforce the November 2007 decision.
3. The threshold for assessing prospects under paragraph 353 was modest. The exercise could not be reduced to working through the factors identified in LP and disposing of them individually. The factors included Tamil ethnicity, previous suspected LTTE involvement, scarring, return from London, illegal departure, lack of documentation, an overseas asylum claim and LTTE relatives. Some were background factors rather than risk factors.
4. The relevant question was the cumulative effect of the factors in the particular case. The number of satisfied factors was not determinative. One appropriate risk factor might suffice, whereas several factors, whether background or risk factors, might not. The changed country conditions were material because the earlier adjudicator’s assessment had been made during a materially different situation in Sri Lanka.
5. The court rejected the suggestion that the case raised a general point of law warranting permission to appeal. Sri Lankan cases were fact-specific, and permission to appeal was refused. Costs were subject to detailed assessment if not agreed.

Permission for judicial review was granted on the papers by Mr Justice Stadlen on 24 April 2008. The Administrative Court then quashed the Secretary of State’s decision and directed that the claimant have the opportunity for assessment by a further immigration judge. Permission to appeal was refused.