Razaaie v Secretary of State for the Home Department

When considering further asylum or human-rights submissions under Immigration Rules paragraph 353, the Secretary of State must ask whether an adjudicator applying anxious scrutiny would have a realistic prospect of finding a real risk of persecution. The Secretary of State must assess both the new material and the legal conclusions arising from it. A decision-maker cannot substitute the question whether he personally accepts that the new evidence changes the case. An expert report must be assessed for its methodology, reasoning and evidential weight. It is inadequate to dismiss such a report merely as an opinion based on experience. Material not before the Secretary of State cannot ordinarily be relied on to quash the decision. A defective decision should be quashed and remitted for reconsideration.

The claimant, an Iranian Kurd, had unsuccessfully claimed asylum and exhausted his appeal rights. He then made further submissions relying on an Iranian court summons, an envelope and a CD containing pro-Kurdish songs.

The Secretary of State rejected the submissions under paragraph 353 of the Immigration Rules. A supplementary letter later addressed an expert report which expressed the view that the summons was genuine. The claimant sought judicial review, arguing that the Secretary of State had failed to apply the correct fresh-claim test and had inadequately assessed the expert evidence.

1. Judicial review claim allowed. The decisions of 23 April and 16 October 2009 were quashed, and the matter was remitted to the Secretary of State to reconsider the claimant’s application of 31 March 2009 and its enclosures. The claimant was awarded costs to be assessed.
2. Under paragraph 353 of the Immigration Rules, the Secretary of State must ask whether the new material, considered with the earlier material, gives an adjudicator applying anxious scrutiny a realistic prospect of finding a real risk of persecution. The Secretary of State’s personal view of the merits is only a starting point. This was the two-question approach identified in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495.
3. The original decision failed to address the expert report and treated the question as whether the Secretary of State himself accepted that the summons altered the case. That was the wrong test. Although the supplementary decision referred to the correct test, it inadequately dealt with the report.
4. Anxious scrutiny required consideration of the report’s rational analysis of the document, including its paper, language, internal consistency, stamps, inks, alterations and other indicia of forgery. Dismissing it as no more than an opinion based on experience did not fairly assess its content or weight. The report was capable of giving an adjudicator a reasonable prospect of reaching a different conclusion.
5. Additional material supplied after the decision could not be used to criticise the Secretary of State for failing to consider it, because it was not before him when he made the decision.