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

Paragraph 353 of the Immigration Rules imposes a modest threshold for a fresh claim. The decision-maker must consider new material with the material previously considered and ask whether it is significantly different and creates a realistic prospect of success before an immigration judge.

Judicial review remains confined to Wednesbury irrationality, but anxious scrutiny is essential. The court must ask whether the correct question was addressed and whether the evaluation of fact and law satisfied anxious scrutiny. A decision that an immigration judge could only reject the claim is unlawful where the material requires genuine assessment of future risk.

The claimant, a Turkish national whose asylum and human rights claims had been rejected, made further submissions supported by two documents said to show criminal proceedings and an arrest warrant in Turkey. The Secretary of State rejected the material as unauthentic and concluded that the claimant’s alleged relationship with a brother who had obtained asylum in the United Kingdom created no risk on return.

The claimant challenged the refusal of a fresh claim under paragraph 353 of the Immigration Rules. The issues were whether the Secretary of State was entitled to reject the documents as unauthentic and whether the material concerning the claimant’s brother and the risk on return required consideration by an immigration judge.

1. Fresh-claim test. Paragraph 353 required the Secretary of State to consider the new material together with the material previously considered. The material had to be significantly different and, taken together with the earlier material, create a realistic prospect of success. The threshold was modest and required anxious scrutiny.
2. Judicial review. Applying WM(DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the court could intervene only on Wednesbury grounds. However, irrationality included failure to apply anxious scrutiny. The court had to ask whether the correct question was addressed and whether the factual and legal assessment was properly conducted.
3. Documents. The Secretary of State was entitled to assess the reliability and authenticity of allegedly new documents. In light of the inconsistencies in the documents, the surrounding evidence and the inconclusive expert evidence, the decision to reject them was rational.
4. Risk arising from the brother. The Secretary of State was wrong to conclude that a properly directed immigration judge could only reject the claimant’s case. The claimant’s relationship with a brother who had obtained asylum, the possible disclosure of that relationship on return, and the accepted principle that a failed asylum claimant cannot be expected to lie created material requiring assessment by an immigration judge. The threshold under paragraph 353 was met for this purpose.
5. The claim succeeded. The decision letters of 23 June and 5 September 2008 were quashed. No declaration was made because it remained for the Secretary of State to reconsider whether the further submissions amounted to a fresh claim. The defendant was ordered to pay the claimant’s costs.