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

Under paragraph 353 of the Immigration Rules, further asylum representations must be assessed with the material previously considered. The question is whether an independent tribunal might realistically allow the claim, applying anxious scrutiny. The threshold is modest, but the Secretary of State may weigh new evidence against established adverse credibility findings, including omissions, inconsistencies and the quality of hearsay evidence. The reviewing court asks whether the correct question was asked and whether anxious scrutiny was applied. Its review is on ordinary Wednesbury principles. Evidence need not be rejected as intrinsically incredible before it can be given little weight. A fresh expert report will not materially improve prospects where its reliability, independence or credentials are insufficient.

The claimant, an Ethiopian national and former asylum seeker, challenged the Secretary of State’s refusal to treat further representations as a fresh asylum claim. His original asylum appeal had been dismissed in 2003 following adverse credibility findings concerning his alleged involvement with the Oromo Liberation Front, detention and escape. Further representations relied on witness statements, community evidence and country guidance. Permission for judicial review was initially refused but later granted, after which the Secretary of State reconsidered and confirmed the refusal in a decision letter dated 12 August 2008.

The claimant argued that the Secretary of State had applied the wrong test and had failed to apply anxious scrutiny. The court also considered, de bene esse, a later expert report and whether it materially improved the prospects of success.

1. Application dismissed. The decision letter of 12 August 2008 was lawful.
2. Paragraph 353 required the Secretary of State to decide whether the further submissions were significantly different from the material previously considered. The material, taken together, had to create a realistic prospect of success before an immigration judge. The threshold was modest, but the assessment had to be informed by anxious scrutiny: all the evidence had to be considered in the round and given proper weight.
3. The Secretary of State asked the correct question. The issue was not whether the new witnesses’ evidence was intrinsically credible, but whether the new material, viewed with the earlier evidence, created a realistic prospect of success. The decision maker was entitled to place substantial weight on the adjudicator’s clear and cogent adverse credibility findings, including the claimant’s late disclosure of serious detention and injury, inconsistent accounts of his escape, and implausible aspects of his case.
4. The quality of the new evidence was material. One witness had no first-hand knowledge of the alleged detention and provided partly speculative hearsay. The evidence did not establish that any detention was connected with Oromo Liberation Front involvement. The evidence of the claimant’s fundraising and continuing community activity therefore added little, particularly as there was no evidence that the Ethiopian authorities knew of those activities.
5. The court considered the later Namarra report de bene esse. It did not materially improve the prospects of success in a hypothetical future appeal. The report writer’s credentials were not reliably established and her personal connection with the Oromo Liberation Front raised questions about the significance and independence of the material. The claim was dismissed, subject to any consequential-order submissions.

The judgment describes the claimant’s earlier asylum appeal and the procedural history of the judicial review application. It does not record an appeal from the decision under challenge.