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

For a fresh claim under paragraph 353 of the Immigration Rules, the Secretary of State must carefully consider the new material with anxious scrutiny. The threshold is not high, but the question remains whether, taken with the earlier evidence, it would create a realistic prospect that an immigration judge would reach a different conclusion. Country guidance must be taken into account and may be departed from only for good, evidence-based reason. The ultimate question is the individual applicant’s actual risk at the proposed destination, recognising that country conditions may change. Article 8 material already considered will not ordinarily require a fresh claim unless the proposed removal arrangements introduce a genuinely new issue, such as a real prospect that the family cannot be reunited.

These were two renewed applications for judicial review by a husband and wife. The wife challenged refusal of further asylum and human-rights representations concerning removal to Zimbabwe, relying principally on the country-guidance decision RM Returnees Zimbabwe [2008] UKAIT 83. She also relied on family circumstances and Article 8. The husband challenged deportation-related decisions and relied mainly on the family’s Article 8 position.

The central issues were whether the further material crossed the paragraph 353 threshold for a fresh claim, and whether the proposed removal arrangements created a new Article 8 claim.

1. Outcome. The renewed applications for permission to apply for judicial review were dismissed.
2. Article 8. The wife’s family circumstances, the children and the possibility of temporary separation had already been considered by the tribunal. The Secretary of State was not required to treat the repeated Article 8 representations as a fresh claim. A fresh issue might arise when actual removal arrangements were proposed if there were demonstrably no real prospect of family reunification or the family could not be kept together even with short-term separation. The same conclusion applied, a fortiori, to the husband, whose Article 8 case had been considered more recently.
3. Protection claim. Paragraph 353 imposes a low threshold, but requires careful consideration and anxious scrutiny. The question was whether the new country material, considered with the evidence before the immigration judge, would be likely to lead an immigration judge to find that the wife faced a risk of harm requiring protection.
4. Country guidance. RM Returnees Zimbabwe [2008] UKAIT 83 had to be taken into account. Departure required a good reason based on evidence. Nevertheless, the decisive issue was the actual risk to the individual, and conditions in Zimbabwe could fluctuate. The Secretary of State was entitled to rely on more recent evidence indicating that the earlier period of indiscriminate violence had subsided and that persons without political activity were not generally at risk.
5. The refusal letters showed careful consideration of the material. The evidence did not create a realistic prospect of a different decision on either protection or Article 8. The claim was therefore dismissed.