M, 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 the material previously considered, they create a realistic prospect of success before an immigration judge. The threshold is modest. The Secretary of State must assess the new material with the earlier evidence, rather than decide whether the documents are probably genuine or whether asylum should ultimately be granted. A decision remains subject to review on conventional Wednesbury grounds. Where an asylum claimant has previously been found generally credible and new documents could materially alter the assessment of risk or personal profile, a decision giving the documents no weight may make it unlawful to conclude that there is no realistic prospect of success.

The claimant, an Ahmadi from Pakistan, sought judicial review of decisions that further representations and documents did not amount to a fresh asylum claim. Her original asylum claim had been refused and her appeal dismissed. The immigration judge had accepted much of her account and regarded her as generally credible, but classified her as an unexceptional Ahmadi who would not face a real risk on return.

The claimant relied principally on later newspaper articles, family documents, a hospital report and a judicial complaint. She argued that, considered with the evidence previously accepted, the documents could show that she had a higher profile and faced a different risk on return. The central issue was whether the Secretary of State could lawfully conclude that an immigration judge had no realistic prospect of allowing the claim.

1. The claim was allowed. The Secretary of State’s decision that the representations submitted on 30 October 2008 did not amount to a fresh claim was quashed. The claimant’s costs were subject to detailed assessment if not agreed. Permission to appeal was refused.
2. Paragraph 353 required the Secretary of State to ask whether the further material, taken together with the previously considered material, created a realistic prospect that an immigration judge would allow the claim. Following WM(DRC) v Secretary of State for the Home Department [2006] EWCA 1495 (Civ), that was a modest threshold. The Secretary of State had to scrutinise the material anxiously, give proper weight to the issues and consider the evidence in the round. The court’s review was limited to Wednesbury grounds.
3. The previous immigration decision was materially uncertain. The findings that the claimant had not been actively preaching and had no particular Ahmadi profile did not sit easily with the accepted evidence that she had been accused of indoctrinating pupils and had been attacked twice. The distinction between exceptional and unexceptional Ahmadis in Secretary of State for the Home Department v KK [2005] UKIAT 00033 had to be applied with regard to the broader concept of propagation identified in MJ and ZM v Secretary of State for the Home Department [2008] UKIAT 00033.
4. The Secretary of State was entitled to be sceptical about the authenticity and weight of some documents. That was not, however, the decisive question. The question was whether the material could realistically lead an immigration judge, considering the whole evidence, to reach a different conclusion. The newspaper articles and judicial complaint could not readily be dismissed, especially against the background of accepted attacks connected with the claimant’s faith. It was therefore not open to the Secretary of State to conclude that there was no realistic prospect of success.
5. The decision was specific to the facts. The court rejected the suggestion that it had substituted its own view for that of the Secretary of State.

The judgment was a first-instance judicial review decision. The claimant’s original asylum refusal was followed by dismissal of her appeal by an immigration judge on 17 May 2005; applications for reconsideration were refused by a senior immigration judge on 6 June 2005 and by Collins J on 12 July 2005. Those decisions were not under appeal in this claim. The Administrative Court quashed the later fresh-claim decision and refused permission to appeal.