SS (Sri Lanka), R (on the application of) v Secretary of State for the Home Department

When assessing further asylum or human-rights submissions under paragraph 353 of the Immigration Rules, the Secretary of State must ask whether an independent tribunal could realistically allow the claim on the new material considered with the earlier evidence. The assessment must apply anxious scrutiny and current country conditions.

Earlier country guidance cannot be applied mechanically where circumstances have materially changed. Risk factors must be assessed cumulatively and against the individual’s established profile. A previous detention, suspected or admitted LTTE involvement, the duration and circumstances of detention and release, and the likelihood of official records may remain significant even where the person was released after payment of a bribe.

The claimant, a Sri Lankan Tamil, sought judicial review of three decisions refusing to treat further submissions as a fresh asylum or human-rights claim under paragraph 353 of the Immigration Rules. His original asylum appeal had been allowed by an adjudicator but allowed on appeal by the Immigration and Asylum Tribunal in 2003.

The further submissions relied on changed conditions in Sri Lanka and subsequent country guidance, particularly LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076. The central issue was whether the Secretary of State could reasonably conclude that an immigration judge would have no realistic prospect of allowing the claimant’s claim, applying anxious scrutiny to the new material together with the evidence previously considered.

1. The claim for judicial review was allowed and the Secretary of State’s decisions dated 26 September 2007, 16 November 2007 and 5 January 2009 were quashed.

2. Under paragraph 353, the question was whether an independent tribunal might realistically allow the asylum or human-rights claim on the new material together with the earlier material. The Secretary of State had to ask the correct question and subject the evidence to anxious scrutiny, as 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 AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535.

3. The exceptionality approach in TJ (Risk - Returns) Sri Lanka CG [2002] UKIAT 01869 no longer applied following LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076. Risk had to be assessed by reference to current conditions, the individual’s profile and the cumulative effect of relevant factors.

4. Release after payment of a bribe remained relevant but was not conclusive. The guidance in PT (Risk-Bribery-Release) Sri Lanka CG [2002] UKIAT 03444 required qualification by current conditions and the particular facts. The likelihood that detention, LTTE involvement or a confession had been recorded was material.

5. The claimant’s prolonged detention, admitted LTTE membership and spying, likely recorded confession, the continuing interest shown by PLOTE, and other risk factors required careful cumulative assessment. The Secretary of State instead relied formulaically on the 2003 IAT conclusions, failed adequately to engage with the established facts and current conditions, and reached a conclusion that was not reasonably open to her.

The judgment records that an adjudicator allowed the claimant’s asylum appeal on 29 January 2003. The Immigration and Asylum Tribunal allowed the Secretary of State’s appeal on 10 September 2003. Permission to appeal to the Court of Appeal was refused, and the claimant’s appeal rights were exhausted on 13 November 2003.

The present proceedings were a first-instance judicial review. The High Court quashed the Secretary of State’s three later decisions.