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

In assessing whether new material gives an asylum claimant a realistic prospect of success, identified risk factors must be evaluated in their factual and evidential context. General country evidence cannot overcome specific evidence showing that the claimant was not of continuing interest to the authorities. Past detention, reporting conditions, LTTE links or failure to report do not establish present risk where there is no sound basis for believing that those matters remain recorded or relevant. A risk category requiring a previous record is of no practical relevance unless the evidence supports the existence and accessibility of such a record.

The claimant, a Sri Lankan Tamil, sought judicial review of the Secretary of State’s refusal to treat further assertions as a fresh asylum claim. His original asylum claim had been rejected after an adjudicator accepted some past events but found that he was not of interest to the Sri Lankan authorities. That conclusion was upheld by the Immigration Appeal Tribunal.

The further material concerned changed conditions, asylum granted to family members in Europe, and country guidance concerning returnees with LTTE connections. The central issue was whether the new material gave a proposed appeal a realistic prospect of success.

1. The claim was dismissed. The claimant had failed to show that an appeal to the Tribunal based on the new material would have a realistic prospect of success. The defendant was awarded costs, subject to detailed assessment if not agreed.
2. The risk factors identified in LP (CG) [2007] UKIAT 00076 had to be assessed in context. The claimant was Tamil, had previously supported the LTTE and claimed to have failed to report, but there was no evidence of LTTE activity or fund-raising in the United Kingdom, no outstanding warrant, no confession, and no other evidence establishing present risk.
3. The observations concerning records in AN and SS (CG) [2008] UKIAT 0063 were applicable. It was unrealistic to suppose that the claimant’s earlier detention, release conditions or failure to report would be recorded in a form actively maintained or available to the authorities. The mere imposition of reporting conditions did not demonstrate continuing interest.
4. The claimant’s own history provided an independent reason for rejecting the claim. After his LTTE activity, detention, ill-treatment, reporting obligation and family connections had become known, he was detained in Colombo for only a short period, was not ill-treated, was not charged and was released without a bribe. The earlier finding that he was not of interest therefore remained significant.
5. NA v United Kingdom (Application No 25904/07) and R (SS) (Sri Lanka) v Secretary of State for the Home Department [2009] EWHC 223 Admin did not assist the claimant. His case lacked the clear individual detention record, photograph and fingerprints present in NA v United Kingdom, and the confession and prolonged detention present in R (SS) (Sri Lanka).
6. Permission to appeal to the Court of Appeal was refused because the proposed issues concerning the cumulative effect of the risk factors and the standard of proof concerning records could not affect the result on these facts.

The judgment records that permission for judicial review had previously been granted by Mitting J. It also records an earlier refusal of permission on the papers by Collins J and a subsequent application for permission to appeal to the Court of Appeal.

• High Court (Administrative Court): the judicial review claim was dismissed. Permission to appeal was refused.