FE (Ethiopia) v Secretary of State for the Home Department

Under paragraph 353 of the Immigration Rules, the Secretary of State must first decide whether the further material is significantly different. If it is, the question is whether, taken with the earlier material, it creates a realistic prospect that a fresh tribunal, applying anxious scrutiny, would find a real risk of persecution. The exercise is not a prediction that the original tribunal would reach a different decision. Earlier credibility findings may remain relevant, but the decision-maker must assess the new evidence in the context of the fresh-claim test. Anxious scrutiny requires proper engagement with material evidence. The court may decline to quash only where the outcome would inevitably have been the same despite the unlawfulness. Here, the decision was quashed because the wrong test was applied and material evidence was inadequately assessed.

The claimant, an Ethiopian national, sought judicial review of the Secretary of State’s decision dated 7 October 2008 that further representations did not amount to a fresh asylum claim under paragraph 353 of the Immigration Rules. His original asylum appeal had been dismissed after the tribunal rejected his account of involvement with the Oromo Liberation Front and his detention in Ethiopia.

The further representations included a purported police letter, a report from an OLF representative, and evidence from Dr Trueman. The claimant argued that the Secretary of State had applied the wrong legal test and had irrationally rejected the new material without anxious scrutiny.

1. Wrong legal test. The decision-maker was required to apply the two-stage approach stated in WM [2006] EWCA Civ 1495: determine whether the material was significantly different, and then whether, with the earlier material, it created a realistic prospect of success before an adjudicator. The decision letter instead repeatedly asked whether the new evidence would have caused the original AIT to reach a different conclusion.
2. The relevant hypothesis was a fresh decision by a fresh tribunal on whether there was a real risk of persecution. The original tribunal’s credibility findings could be considered, but the decision-maker could not treat the exercise as a review by that tribunal. The repeated use of “would” imposed an impermissibly demanding standard, inconsistent with the modest threshold of a realistic prospect.
3. The decision-making process had to be informed by anxious scrutiny, as explained in Bugdaycay v Secretary of State for the Home Department [1987] AC 514. The court did not establish any general rule concerning the use of unnamed sources in asylum evidence. On the facts, however, the decision letter failed properly to engage with the report from the OLF representative. It incorrectly treated the evidence about detention and ill-treatment as deriving entirely from the claimant, although the report indicated that the information had been relayed through OLF sources.
4. The country-guidance risk factors in MB remained relevant, but the court was not persuaded that their express recitation was necessary where the new evidence had been rejected for other stated reasons.
5. The errors were material. Although the court had discretion not to quash where the outcome was inevitably inevitable, that was not such a case because the incorrect test and defective treatment of the report were interrelated. The decision letter dated 7 October 2008 was quashed. The matter was not itself declared to be a fresh claim. The defendant was ordered to pay the claimant’s costs, subject to detailed assessment.

First-instance judicial review proceedings. The decision letter dated 7 October 2008 was quashed.