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

Under paragraph 353 of the Immigration Rules, further submissions must first be assessed for significant difference from material previously considered. If that threshold is met, the decision-maker must consider whether the material, taken with the earlier evidence, creates a realistic prospect of success before a tribunal. The test is modest and requires anxious scrutiny. The decision-maker must assess the new material in the round, including the interaction between different strands of evidence. A failure to consider a material aspect, or to evaluate related evidence together, may render the decision unlawful. Where the decision-maker has not properly addressed that issue, the appropriate course will ordinarily be reconsideration rather than the court determining the asylum claim itself.

The claimant, an Iranian national and Muslim convert to Christianity, challenged the Secretary of State’s refusal to treat further submissions as a fresh claim under paragraph 353 of the Immigration Rules. His earlier asylum appeal had failed principally because the tribunal rejected his credibility, although it accepted that an active convert who proselytised in Iran might face serious risk.

The further submissions relied on Iranian court judgments, baptism, increased Christian knowledge and evidence that the claimant had engaged in evangelising and proselytising in the United Kingdom. The central issue was whether the Secretary of State had lawfully assessed that material, particularly when considered together with the evidence of risk to active converts.

1. Claim allowed. Permission for judicial review was granted and the Secretary of State’s decision was set aside for reconsideration. The matter was to return to the Secretary of State rather than being referred directly to an immigration tribunal.

2. Paragraph 353 requires a two-stage assessment. The decision-maker must first ask whether the further material is significantly different because its content has not already been considered. If so, the decision-maker must then ask whether the new material, taken together with the earlier material, creates a realistic prospect of success before an adjudicator or tribunal.

3. The threshold is modest. The decision-maker must assess the reliability and effect of the material with anxious scrutiny. Previous adverse credibility findings may be relevant, but they cannot automatically determine the treatment of new evidence, particularly where that evidence comes from sources other than the claimant.

4. The Secretary of State had been entitled to approach the alleged Iranian court judgments sceptically, since the claimant appeared previously to have misled the tribunal about whether those documents were available. However, the decision letter did not adequately consider the separate evidence that the claimant had been baptised, was living at a church and had undertaken evangelising and proselytising activities in the United Kingdom.

5. The decision-maker had also failed to bring that evidence together with the evidence of the Iranian judgments and the accepted risk faced by a more active convert. The evidence was limited and might ultimately fail at proof, but it was capable of creating a realistic prospect of success before a differently constituted tribunal. The omission was therefore a reviewable error.

6. The court did not regard the case as so exceptional that it should order an appeal directly. A fresh and properly reasoned consideration by the Secretary of State was appropriate. The usual order as to costs was made, and the claimant’s anonymity was permitted.

• Asylum and Immigration Tribunal: the claimant’s original asylum appeal failed, principally because his evidence was rejected as lacking credibility. An application for reconsideration was refused on 26 October 2007.
• High Court: an earlier application for judicial review was rejected by Owen J. The present claim challenging the Secretary of State’s fresh-claim decision was allowed.