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

Under paragraph 353 of the Immigration Rules, further submissions constitute a fresh claim only if they contain material not previously considered and, taken with the earlier material, create a realistic prospect of success. The two conditions are cumulative. The threshold is modest, but the Secretary of State’s assessment remains subject to review. The question is whether the conclusion that the threshold was not met could properly have been reached. In an asylum claim, different risk factors must be considered cumulatively. A court must apply anxious scrutiny when assessing the possibility of ill-treatment on return. Where new evidence of religious conversion combines with accepted past political persecution and may create a realistic prospect of success, reconsideration of the claim may be required.

The claimant, an Iranian national, had previously made an unsuccessful asylum claim and had exhausted his appeal rights. In subsequent submissions he disclosed a recent conversion from Islam to Zoroastrianism. He relied on that conversion together with his earlier political activities and alleged mistreatment in Iran.

The Secretary of State decided that the submissions did not amount to a fresh claim under paragraph 353 of the Immigration Rules. The claimant sought judicial review and argued that the combination of his apostasy, conversion and political history created a realistic prospect of success. The central issue was whether the Secretary of State could properly conclude that the paragraph 353 threshold was not satisfied.

1. Claim allowed. The Secretary of State’s operative decision was quashed. The matter was to be reconsidered by the Secretary of State, without a mandatory order dictating the outcome.
2. Paragraph 353 of the Immigration Rules imposes two cumulative conditions. The further submissions must contain material not previously considered and, taken together with the earlier material, must create a realistic prospect of success notwithstanding the earlier refusal.
3. Following WM v Secretary of State for the Home Department [2006] EWCA 1495, the realistic-prospect threshold is modest. The issue on judicial review was therefore whether the Secretary of State’s conclusion that the threshold was not met was a conclusion that could properly have been reached, rather than whether it satisfied only a narrow test of perversity.
4. The relevant risk had to be assessed cumulatively. The claimant’s conversion from Islam involved alleged apostasy, and the significance of that conversion could not be separated from his previous political activities and accepted mistreatment. The likelihood that the conversion and apostasy would come to the attention of the Iranian authorities was ultimately for the appellate authority to assess.
5. The passage from Secretary of State for the Home Department v FS [2004] UKIAT 00303 provided relevant material concerning the assessment of risk where conversion becomes known. It did not determine the factual issue in this case.
6. The accepted 1999 arrest and treatment, together with a possible error concerning the 2002 arrest warrant and the new conversion evidence, meant that the combined case met the modest threshold for reconsideration. The Secretary of State was required to reconsider the matter and retain the ultimate decision on the fresh claim.

The judgment does not state that this matter was an appeal from another court. It records that the claimant’s earlier asylum appeal had been refused and that permission to pursue judicial review was granted by Sullivan LJ.