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

Under paragraph 353 of the Immigration Rules, the Secretary of State must decide whether further submissions are significantly different from material previously considered and whether, taken together, they create a realistic prospect of success. The review is twofold: the decision maker must ask whether an immigration judge, applying anxious scrutiny, might find a real risk of persecution, and must actually apply anxious scrutiny to the material.

The Secretary of State may reject evidence where no immigration judge could reasonably accept it as genuine. However, he must avoid deciding genuineness himself where credible supporting material raises a real issue. Relevant documents must be considered together. Failure to engage with material evidence requires the decision to be quashed.

The claimant, a failed Cameroonian asylum seeker, challenged the Secretary of State’s refusal to treat further representations as a fresh claim under paragraph 353 of the Immigration Rules. The representations included a purported 2005 arrest warrant, a letter from the claimant’s wife, and medical evidence.

The claimant’s earlier asylum appeal had been dismissed by an adjudicator in November 2004. The Secretary of State’s first decision mistakenly treated the arrest warrant as material previously considered. A subsequent decision accepted the document was new but rejected it and did not mention the wife’s letter. The central issue was whether the Secretary of State had applied the required test of anxious scrutiny.

1. The application for judicial review was allowed and the Secretary of State’s decision was quashed.
2. Paragraph 353 requires a two-stage assessment. The decision maker must first determine whether the material was previously considered. If it was not, the decision maker must assess whether the new material, taken with the earlier material, creates a realistic prospect of success.
3. Following WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the reviewing court asks whether the Secretary of State asked the correct question and whether he applied anxious scrutiny. The question is whether an immigration judge might conclude that the claimant faces a real risk of persecution, not whether the Secretary of State considers that outcome likely.
4. The Secretary of State was entitled to reject a document where there was good reason to conclude that no immigration judge would accept it as genuine. He was not entitled, in the circumstances, to resolve the genuineness issue himself where the arrest warrant and the wife’s letter raised a credible issue requiring assessment by an immigration judge.
5. The subsequent decision failed to consider the wife’s letter, either separately or together with the arrest warrant. It therefore did not satisfy anxious scrutiny. The fresh material should have been treated as a fresh claim and referred to an immigration judge to consider the warrant’s genuineness, the supporting effect of the wife’s letter, and any resulting risk of persecution.
6. The Article 8 material concerning the claimant’s community connections did not, by itself, require referral as a fresh claim. Nevertheless, the immigration judge should consider the whole of the fresh material.

• Adjudicator: The claimant’s asylum appeal was dismissed at a remitted hearing on 23 November 2004.
• High Court (Administrative Court): The judicial review claim was allowed and the Secretary of State’s decision was quashed.