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

Under paragraph 353 of the Immigration Rules, a fresh asylum claim requires material that was not previously considered and that, taken with the earlier material, creates a realistic prospect of success. The Secretary of State must apply that test correctly and must reach a rational conclusion on the claimant’s prospects before an asylum adjudicator.

The assessment is holistic. Earlier findings that the claimant’s evidence was false may substantially reduce the weight of later supporting evidence. Independent letters from persons unaware of the claimant’s adverse immigration history may have limited probative value. Where the evidence, considered as a whole, cannot realistically establish the claimed risk, refusal of the fresh claim is rational.

The claimant, an Afghan national, sought judicial review of decisions rejecting further submissions based on an alleged conversion to Christianity. His earlier asylum claims, based on different grounds, had been rejected, and his appeal rights were exhausted.

After permission was granted, the Secretary of State reconsidered the representations and issued a further decision letter dated 4 February 2009. The central issue was whether the Secretary of State could rationally conclude that the alleged conversion and supporting evidence created no realistic prospect of success before an asylum adjudicator.

1. The claim for judicial review was dismissed. The Secretary of State’s decision of 4 February 2009 lawfully applied paragraph 353 of the Immigration Rules.

2. Following WM (DRC) (No 2) and AR (Afghanistan) [2006] EWCA Civ 1495, the court had to ask whether the correct criteria had been applied and whether the Secretary of State could rationally conclude that the fresh matters had no realistic prospect of success before an asylum adjudicator. The latter was a relatively low hurdle, but it remained a rationality question.

3. The evidence had to be assessed as a whole. The claimant’s previous asylum claim had been rejected after findings that his evidence was false and opportunistic, and he had not mentioned any conversion to Christianity when he had an ample opportunity to do so. Those matters were highly material to the credibility of the later claim.

4. The supporting letters from clergymen did not overcome those difficulties. The writers had not been aware of the claimant’s immigration history and therefore had not critically tested the account in the way a future asylum adjudicator would. The evidence of baptism and intermittent church attendance consequently had very limited probative value.

5. On the material as a whole, there was no realistic prospect that an adjudicator would accept that the claimant had genuinely converted to Christianity and intended to practise openly in Afghanistan in a way exposing him to treatment contrary to the ECHR. The Secretary of State’s conclusion was rational and, indeed, the only reasonable conclusion open on the evidence.

6. The ordinary order for costs followed.

The judgment records that permission for judicial review was refused on the papers by Silber J on 15 January 2008 and granted by Davis J after an oral hearing on 9 May. Following observations made when permission was granted, the Secretary of State reconsidered the representations and issued a further decision letter on 4 February 2009.