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

Under paragraph 353 of the Immigration Rules, further submissions must be assessed with anxious scrutiny. The decision-maker must ask whether the material is significantly different from that previously considered and, taken with the earlier material, creates a realistic prospect that an Immigration Judge might allow the claim. The assessment is not whether the Secretary of State considers the claim likely to succeed. Material that merely explains or re-argues evidence already considered may not be significantly different, particularly where it does not add directly to the evidence of risk. A claimant must provide objective material capable of supporting the proposed conclusion. A judicial review claim fails where the Secretary of State applies that test in substance and the new material does not establish a realistic prospect of success.

The claimant, a Pakistani Ahmadi woman, had previously been refused asylum and humanitarian protection after an Immigration Judge rejected her account of domestic abuse and control by her father and found that documents concerning alleged criminal proceedings were unreliable. Her appeal rights were exhausted in January 2009.

Following her detention for removal, she made further submissions relying on a Pakistani lawyer’s letter explaining aspects of the documents, her marriage in the United Kingdom and her medical condition. The Secretary of State refused to treat the submissions as a fresh claim under paragraph 353 of the Immigration Rules. The central issue was whether the Secretary of State had applied the fresh-claim test correctly and whether an Immigration Judge might realistically reach a different conclusion.

1. Fresh-claim test. The Secretary of State had to examine the further material with anxious scrutiny and determine whether an Immigration Judge, also applying anxious scrutiny, might find a real risk of persecution or treatment contrary to the Convention. The question was not whether the Secretary of State herself accepted the claim, but whether there was a realistic prospect of success before an independent Immigration Judge. This approach was summarised in R(RS) v SSHD [2009] EWCA Civ 688.
2. Significant difference. The court expressed very substantial reservations about treating the Pakistani lawyer’s letter as significantly different material. The expression had to be understood broadly. A claimant bears the burden of proof, and allowing repeated expert or explanatory material after evidence had been rejected could lead to repeated re-litigation. The letter largely contextualised and clarified documents already considered. It did not add direct evidence of risk and had to be assessed against the fact that the Immigration Judge had relied on several reasons for rejecting the claimant’s account. The court did not finally decide this limb because the second limb was determinative.
3. Realistic prospect of success. The Secretary of State was entitled to conclude that the new material, taken with the earlier material, did not create a realistic prospect of success. There was no objective evidence before her capable of showing that an Immigration Judge might find a relevant risk arising from an allegation of adultery. The newly advanced submissions concerning aggressive questioning and detention could not retrospectively establish a realistic prospect where supporting material had not been provided.
4. Article 8. The marriage and medical evidence did not give rise to an arguable Article 8 claim. Both spouses were Pakistani and had no established right to remain, and the medical treatment relied upon was available in Pakistan, although less readily.
5. The Secretary of State had applied the correct test in substance. The claim for judicial review was dismissed, with costs subject to detailed assessment if not agreed.