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

Under paragraph 353 of the Immigration Rules, further submissions amount to a fresh claim where they are significantly different from the material previously considered and create a realistic prospect of success on appeal when taken with that material. The threshold is modest and requires anxious scrutiny. Where the primary facts are undisputed, the court must ask itself whether the claim has that prospect; if it does, a contrary decision by the Secretary of State is irrational. In assessing risk on return, general country conditions must be considered together with the applicant’s individual profile. Relevant factors are not a checklist and may operate cumulatively, although some factors may carry little or no independent weight.

The claimant, a Sri Lankan Tamil, had claimed asylum in 2001. His claim and Article 3 case were dismissed in 2002. He later made further submissions relying on deterioration in the security situation in Sri Lanka, country evidence, his previous detentions and ill-treatment, and risk factors identified in country guidance.

The Secretary of State’s letters of 28 October 2008 and 7 July 2009 rejected the submissions as not constituting a fresh claim. The claimant amended his judicial review claim, by agreement, to challenge the later letter, which incorporated the earlier decision. The central issue was whether an appeal would have a realistic prospect of success.

1. The claim was allowed and the decision was quashed. The court held that the claimant would have a realistic prospect of success before the appellate fact-finder. The Secretary of State’s contrary conclusion was therefore irrational.
2. Paragraph 353 imposed a modest threshold. The court had to apply anxious scrutiny and decide whether the further submissions, considered with the earlier material, created a realistic prospect of success. The starting point was the 2002 adjudicator’s decision, but the assessment also had to reflect the subsequent deterioration in Sri Lanka and the later authorities.
3. The court accepted that Tamil ethnicity, illegal departure and an overseas asylum claim did not, individually or cumulatively, create a real risk. Scarring was generally confirmatory rather than a free-standing factor. Returning from London was highly case-specific. Those conclusions did not prevent the claimant’s detention history, prior LTTE involvement, recorded detention, scarring, family links and changed country conditions from creating a realistic prospect of success when considered cumulatively.
4. The court placed particular weight on the accepted existence of a record of at least the claimant’s earlier detention. Having regard to NA v United Kingdom and the reasoning in Veerasingham v Secretary of State, it was not possible to characterise the claimant’s fear of the airport authorities as fanciful or without substance. AN did not establish that such records would be unavailable or irrelevant.
5. The absence of a national identity card did not materially strengthen the claimant’s case on the evidence before the court. That issue might have been investigated more fully before an Immigration Judge, but the other factors were sufficient.

The judgment was a first-instance judicial review decision. The claimant was permitted to amend the claim to challenge the Secretary of State’s decision of 7 July 2009, incorporating the decision of 28 October 2008.