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

When reviewing a refusal to treat further representations as a fresh claim, the court must ask whether the Secretary of State applied the correct realistic-prospect test and gave the material anxious scrutiny. The review remains one of irrationality, not an appeal on the merits. The court generally assesses the decision using the information available when it was made. Later evidence may show that the decision was subsequently overtaken or wrong, but it cannot ordinarily establish that the earlier decision was irrational. The evidence must be considered in the round, including the earlier decision-maker’s factual findings and the new material.

The claimant, a Sri Lankan national and former LTTE member, sought judicial review of the defendant’s decision dated 21 January 2009 refusing to treat further representations as a fresh claim. The representations relied on British High Commission material concerning departure procedures and the ability to pass through Colombo Airport without checks. They were said to undermine findings made when the claimant’s asylum appeal was dismissed, including findings that he was not of continuing interest to the authorities.

The claimant also relied before the court on a Country of Origin Information Report dated 26 June 2009, which was unavailable to the Secretary of State when the decision was made. The central issues were the proper approach to reviewing a fresh-claim decision and whether post-decision evidence could be used to show that the decision was irrational.

1. Fresh-claim test. The court adopted the approach in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6. The Secretary of State had to consider whether the further submissions, taken with the previously considered material, created a realistic prospect that an Immigration Judge would allow the claim. That assessment required anxious scrutiny, proper weight to the issues and consideration of the evidence in the round.
2. Scope of judicial review. The decision remained that of the Secretary of State. The court’s task was to ask whether the correct question had been asked and whether anxious scrutiny had been applied. The decision was therefore challengeable only on ordinary Wednesbury irrationality grounds, applying the approach explained in WM (DRC) v Secretary of State for the Home Department and Secretary of State for the Home Department v AR (Afghanistan) [2006] EWCA Civ 1495, and affirmed in AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535.
3. Material available at the date of decision. The court reviewed the decision of 21 January 2009 by reference to the material then before the Secretary of State. It was unattractive to characterise a decision as irrational by reference to information that became available only later. The later country report was therefore not taken into account in deciding whether the earlier decision was irrational.
4. The Secretary of State had addressed the claimant’s earlier credibility findings, the new airport material, scarring, disability and mental health. The additional material did not undermine the findings that the claimant had passed through checkpoints and the airport without difficulty and was not of continuing interest to the Sri Lankan authorities. The application for judicial review was refused. The defendant was awarded its costs, subject to the order applicable to a publicly funded claimant.

First-instance judicial review. Permission was granted on 12 March 2009 by a Deputy High Court Judge. The claim was amended to challenge the Secretary of State’s letter dated 21 January 2009.