Sritharan, 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 if they contain material not previously considered and, taken with the earlier material, create a realistic prospect of success. The Secretary of State decides whether that threshold is met. Judicial review is limited to asking whether the wrong question was asked or whether the decision was irrational or unreasonable in the Wednesbury sense.

Country-guidance risk factors may be background factors rather than risk factors capable, by themselves, of establishing a real risk of persecution. Ethnicity, scarring, return from London, illegal departure, lack of an identity card and an asylum claim abroad were insufficient without evidence of a factor indicating LTTE suspicion. The claim was dismissed.

The claimant, a Sri Lankan national, challenged the Secretary of State’s decision of 3 July 2007 that further representations did not amount to a fresh asylum or human-rights claim. His original asylum claim had been rejected, and an adjudicator had rejected his account of arrest while accepting the claimed histories of his brothers but finding no resulting risk.

After reconsideration under a consent order, the Secretary of State again rejected the representations. A later expert report identified country-guidance risk factors, including Tamil ethnicity, scarring, return from London, lack of an identity card and relatives in the LTTE. Permission for judicial review was eventually granted. The central issues were whether the fresh-claim threshold had been applied correctly and whether the decision was irrational.

1. Application dismissed. The Secretary of State’s decision that the further representations did not amount to a fresh claim was not irrational or Wednesbury unreasonable. The claimant was ordered to pay the Secretary of State’s costs, subject to detailed assessment if not agreed.
2. Under Immigration Rules rule 353, the submissions had to be significantly different because their content had not previously been considered and, taken with the earlier material, created a realistic prospect of success. The threshold was for the Secretary of State to determine. The court could intervene only if she asked herself the wrong question or reached an irrational or Wednesbury unreasonable conclusion: WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495.
3. The principal alleged risk arose from the claimant’s brother’s LTTE involvement. The adjudicator had accepted the brother’s history but had found that the authorities would not link the claimant to him and that, even if they did, persecution would not follow. The claimant’s principal argument that the Bio Data form disclosed the relationship failed because the form omitted that brother’s details. There was also no evidence about what the claimant would say on return or what questions would be asked.
4. Applying the distinction drawn in AN & SS (2008) UKAIT00063, Tamil ethnicity, scarring, return from London, illegal departure, lack of an identity card and having claimed asylum abroad were background factors. They were insufficient, in the circumstances, to create a real risk of persecution without a separate factor indicating suspected LTTE involvement. The identity-card argument was in any event insubstantial because the claimant had a birth certificate, described as the necessary breeder document for obtaining an identity card.

The judgment was a first-instance judicial review decision. Permission was initially refused by Wyn Williams J on 10 December 2007, but permission was granted on renewal by Bean J on 18 July 2008.