Tariq (aka Tariq Mehmood), R (on the application of) v Secretary of State for the Home Department

Under paragraph 353 of the Immigration Rules, further submissions constitute a fresh claim only where they are significantly different and, taken with the earlier material, create a realistic prospect of success before an immigration judge.

On judicial review, the court asks whether the Secretary of State asked the correct question, applied anxious scrutiny and reached a conclusion that was rational in the Wednesbury sense. In assessing internal relocation for Pakistani Ahmadis, Rabwah is neither generically safe nor generically unsafe. The issue depends on the individual facts, including whether past persecution was localised or reflected national or institutional pursuit.

The claimant, a Pakistani Ahmadi, sought judicial review of the refusal to treat further representations as a fresh asylum claim under paragraph 353 of the Immigration Rules.

An earlier adjudicator had found a serious possibility of persecution in Karachi and possibly Sheikhupura, but considered relocation to Rabwah safe and not unduly harsh. Later country guidance in IA and Others (Ahmadis: Rabwah) Pakistan CG and MJ and ZM (Ahmadis-risk) (Pakistan) qualified the general assumption that Rabwah was a safe haven. The issue was whether the Secretary of State had reasonably applied that guidance to the claimant’s circumstances.

1. The application was dismissed. The refusal to treat the further representations as a fresh claim was not unreasonable.
2. Paragraph 353 requires the Secretary of State to ask whether the further material is significantly different and, taken with the previous material, creates a realistic prospect of success before an immigration judge. The court reviews whether the correct question was asked, whether anxious scrutiny was applied, and whether the conclusion of no realistic prospect was irrational. Where there are no primary factual disputes, the court’s own assessment may inform the irrationality question: R (on the application of WM DRC) v Secretary of State for the Home Department, [2006] EWCA Civ 1495; ZT (Kosovo) v Secretary of State for the Home Department, [2009] UKHL 6.
3. The Secretary of State’s statement that IA did not apply because the claimant’s ill-treatment involved police rather than the Khatme Nabuwwat was unjustified. The principle in IA and Others (Ahmadis: Rabwah) Pakistan CG, [2007] UKAIT 00088 did not depend on that distinction. Nevertheless, the Decision read as a whole showed that the Secretary of State had considered the relevant Rabwah principles.
4. Rabwah cannot be assumed to be either generally safe or generally unsafe. Internal relocation is fact-sensitive. Past ill-treatment in Karachi and Sheikhupura did not establish a risk in Jaranwala or Rabwah, because there was no evidence of national or institutional pursuit. The evidence instead indicated localised incidents.
5. The claimant bore the burden of establishing risk on relocation or that relocation would be unreasonable. His previous ill-treatment, without evidence linking it to a continuing or nationwide pursuit, did not discharge that burden. It was therefore open to a reasonable Secretary of State, applying the country guidance with anxious scrutiny, to conclude that there was no realistic prospect of success before an immigration judge.