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

Under paragraph 353 of the Immigration Rules, further submissions amount to a fresh claim where, taken with material previously considered, they create a realistic prospect of success before an immigration judge applying anxious scrutiny. Past persecution is important but does not itself establish a future risk where there are good reasons to consider that it will not be repeated. In assessing Sri Lankan Tamil claims, the LP factors are neither a checklist nor exhaustive and must be assessed individually and cumulatively. A formal, targeted and prolonged detention, particularly where the claimant was recorded, photographed or fingerprinted, may materially increase the risk of detention at Colombo airport. The assessment must address current conditions and the likely availability and use of detention records.

The claimant, a Sri Lankan Tamil, had previously claimed asylum. An adjudicator accepted that he had been persecuted, detained and ill-treated by the Sri Lankan Army, but found no continuing well-founded fear and dismissed his appeal. Following later country guidance in LP (Sri Lanka) and the judgment in NA v United Kingdom, the claimant made further representations. The Secretary of State decided in January and November 2008 that they did not amount to a fresh claim under paragraph 353 of the Immigration Rules. The central issue was whether those decisions were unreasonable because they failed adequately to assess the claimant’s detention history, records held at Colombo airport and the applicable risk factors.

1. The decisions of 22 January and 17 November 2008 were quashed. It was not reasonably open to the Secretary of State, applying paragraph 353 of the Immigration Rules with anxious scrutiny, to conclude that there was no realistic prospect of the claimant establishing a real risk of persecution or ill-treatment on return.
2. The test under paragraph 353 is whether the further material, considered with the material previously considered, creates a realistic prospect of success before an immigration judge. The Secretary of State must ask that question rather than decide the underlying claim personally, and must scrutinise both the facts and the legal conclusions anxiously, applying R (on the application of) WM DRC.
3. Past persecution under paragraph 339K is a serious indication of future risk, but it is not conclusive. The decision-maker must consider whether there are good reasons to believe that the persecution will not be repeated.
4. The LP factors must be assessed individually and cumulatively. They are not a checklist. A distinction must be drawn between risk factors per se, which may themselves create a risk of detention, and background factors, which ordinarily strengthen a case only when a risk factor per se is present.
5. The Secretary of State failed to give anxious scrutiny to the claimant’s four-month detention following a targeted arrest, the formal circumstances of that detention and the asserted recording, photographing and fingerprinting. Those matters were material to the likelihood that his record would be available at Colombo airport and to the risk of detention and ill-treatment there. The wider, holistic approach in §145 of NA v United Kingdom was of central importance and could not be displaced by the narrower analysis in §107 of AN and SS (Tamils-Colombo-risk?) Sri Lanka CG.
6. Release following payment of a bribe did not automatically place the claimant in the lower-risk category discussed in §214 of LP. A formal detention could indicate a higher risk, whether considered under the bail-jumping factor or under the previous LTTE-record factor. Scarring and an admission made during detention could also add to the risk when combined with other factors.
7. The claim for judicial review succeeded. The court deferred consequential relief and costs for further submissions.

The judgment was a first-instance decision on an application for judicial review. The claimant’s earlier asylum appeal had been dismissed by an adjudicator, and permission to appeal to the Immigration Appeal Tribunal had been refused, but no lower-court judgment under appeal was identified.