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

The test for a fresh asylum claim is modest. The question is whether the new material gives an adjudicator, applying anxious scrutiny, a realistic prospect of finding a real risk of persecution. A realistic prospect means more than a fanciful prospect; the Secretary of State need not decide whether the claim would ultimately succeed.

Where the proposed claim depends on a fundamental change from the claimant’s earlier case, and the claimant has previously been disbelieved, the Secretary of State may conclude that there is no realistic prospect of success. The assessment must nevertheless consider whether the evidence could establish the relevant facts, including illegal departure, in the individual circumstances of the case.

The claimant sought judicial review of decisions refusing to treat his representations as a fresh asylum claim. His original asylum claim had been dismissed by an adjudicator in 2004, principally because his account of Somali nationality, Eritrean residence and the circumstances of his departure was not accepted.

He later asserted that he was an Eritrean citizen who had left Eritrea illegally and was therefore at risk on return under subsequent country guidance concerning draft evaders and illegal departures. The Secretary of State concluded that there was no realistic prospect of establishing those facts. The central issue was whether that conclusion was legally unreasonable and whether the fresh-claim test had been properly applied.

1. The application for judicial review was dismissed. The claimant was ordered to pay the Secretary of State’s costs, subject to detailed assessment if not agreed and not enforceable without further leave of the court.

2. The governing approach was that in R (WM (DRC)) v Secretary of State for the Home Department [2006] EWCA Civ 1495. The Secretary of State had to ask whether an adjudicator, applying anxious scrutiny, would have a realistic prospect of finding a real risk of persecution. The question was not whether the Secretary of State considered the claim likely to succeed.

3. Following AK (Sri Lanka) v Secretary of State for the Home Department [2009] EWCA Civ 447, a realistic prospect means more than a fanciful prospect. It remains a modest threshold.

4. The relevant factual question was whether the claimant could realistically establish that he was Eritrean and had left Eritrea illegally. The guidance concerning illegal exit and draft-related risk in KA (draft-related risk categories updated) Eritrea CG UKAIT 00165 and MA (Draft evaders — illegal departures — risk) Eritrea CG [2007] UKAIT 00059 made illegal departure materially important.

5. The approach in GM (Eritrea) and Others v Secretary of State for the Home Department [2008] EWCA Civ 833 required individual assessment. Failure to give a credible account was not a rule of law or rule of thumb which automatically defeated the claim. Nevertheless, the claimant’s prior disbelief, his earlier case that he was Somali, his refusal to adopt the interview evidence relied upon, and the complete reformulation of his case provided a rational basis for concluding that he had no realistic prospect of proving illegal departure.

Permission to apply for judicial review was granted by Sales J on 23 March 2009. This judgment records the substantive hearing before the Administrative Court; no appeal stage is stated.