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

Under rule 353 of the Immigration Rules, further submissions amount to a fresh claim only where they are significantly different from material previously considered and, taken with that material, create a realistic prospect of success. The Secretary of State need not decide whether the claim would succeed. The decision-maker may assess the reliability, provenance, lateness and evidential support of new material, while considering the case in the round and applying anxious scrutiny. Earlier adverse credibility findings are relevant but do not automatically determine the treatment of later evidence. A rationality challenge will fail where the decision gives robust, evidence-based reasons for concluding that the renewed claim has no realistic prospect of success.

The claimant, a Russian national, sought judicial review of the Secretary of State’s refusal to treat further asylum submissions as a fresh claim. His original asylum claim, based principally on alleged political persecution, had been rejected by an Immigration Judge, whose decision was not reopened on reconsideration or further judicial review.

The claimant later produced documents and internet material concerning an alleged conviction, arrest warrant, threats and political activities. The Secretary of State reconsidered the material in a decision letter dated 15 January 2009 and maintained that it did not create a realistic prospect of success. The central issue was whether that conclusion was irrational.

1. The claim was dismissed. The Secretary of State’s decision of 15 January 2009 had subjected the further submissions to the required anxious scrutiny and was not irrational.
2. Rule 353 requires the decision-maker first to identify whether the further material is significantly different from material previously considered and then to ask whether, taken with the earlier material, it creates a realistic prospect of success. The question is not whether the Secretary of State considers the claim likely to succeed, but whether an adjudicator applying anxious scrutiny might do so, as explained in WM v Secretary of State for the Home Department [2006] EWCA Civ 1495.
3. The Secretary of State was entitled to form a view about the reliability of the new documents and to take the earlier decision into account. An earlier rejection of the claimant’s account did not mean that all later material had to be rejected, but it was relevant to the assessment. The evidence had to be considered in the round, including its provenance, lateness, apparent convenience, corroboration and consistency with matters previously known.
4. The Secretary of State was entitled to conclude that the Procurator’s letters did not demonstrate political persecution rather than ordinary criminal prosecution; that the claimant’s account was weakened by his failure to mention matters known to him at the original appeal; and that the internet material lacked reliable support. The piecemeal production of evidence was also a rationally relevant factor.
5. The court rejected the complaint that the decision-maker had treated the earlier credibility findings as conclusive. The decision contained robust reasons for concluding that the renewed claim had no realistic prospect of success. Permission to appeal was refused because the proposed appeal had no real prospect of success and there was no compelling reason to grant it. Detailed assessment of the claimant’s publicly funded costs was ordered.

The judgment records that permission to apply for judicial review was granted after an oral hearing before Owen J. An earlier permission application had been refused by Lloyd Jones J, but permission was later granted following further material. Sullivan J had previously refused to reopen the Immigration Judge’s decision. The Administrative Court dismissed the judicial review claim and refused permission to appeal.