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

The practical difference between the rule 353 test of a realistic prospect of success and certification of a claim as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002 is ordinarily immaterial. Once genuinely new material has been identified, the decision-maker must assess all the material with anxious scrutiny.

A previous adverse immigration decision may inform credibility, although it cannot conclusively determine the truth of later allegations. The Secretary of State decides the threshold question personally; the hypothetical immigration judge is a useful aid, not a legal formula. On judicial review, the court may form its own judgment on whether there was a realistic prospect of success, using only the material available to the Secretary of State.

YH, an Iraqi national from the Kurdish Regional Government area, had previously been refused asylum after an adjudicator found his account of involvement in the illegal sale of a mummy wholly incredible. He later returned voluntarily to Iraq and re-entered the United Kingdom in 2008, alleging that he had been arrested, tortured and was wanted on an arrest warrant.

The Secretary of State refused to treat the further submissions as a fresh claim under rule 353 of the Immigration Rules. Cranston J dismissed YH’s application for judicial review on 12 September 2008. YH appealed. Following BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7, the parties accepted that rule 353 was not the governing route, but disputed whether the material could properly be certified as clearly unfounded under section 94(2).

1. Appeal dismissed. Carnwath LJ, with whom Moore-Bick and Etherton LJJ agreed, held that the Secretary of State was entitled to regard the claim as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002.

2. The practical difference between the rule 353 question of whether new material creates a realistic prospect of success and the section 94(2) question whether a claim is clearly unfounded was negligible. Rule 353 places an initial burden on the claimant to show new material. Once that threshold is passed, the decision-maker must assess the old and new material with anxious scrutiny.

3. A previous appellate decision may be relevant beyond identical factual issues. It may inform the claimant’s credibility, while not proving that every later allegation is false. The Devaseelam guidelines did not exhaust the legitimate relevance of an earlier decision.

4. The Secretary of State decides the statutory or rules-based threshold question in his own capacity. The image of a hypothetical immigration judge is useful because it promotes objectivity, but it is not a legal formula. On judicial review, the court may reach its own judgment on the realistic prospect of success, although review remains confined to the material available to the Secretary of State and is not a de novo hearing.

5. Anxious scrutiny requires reasoning which shows that every factor favouring the applicant has been properly considered. It does not require undue credulity towards accounts which are manifestly contrived or materially inconsistent.

6. YH’s new account was contradictory, uncorroborated and advanced against an earlier finding that his evidence was wholly unreliable. The expert evidence did not establish the reliability or provenance of the arrest warrant. Even if genuine, the warrant supported only the existence of a lawful process for document-falsification offences and did not corroborate past or future maltreatment contrary to article 3.

7. There was no credible evidence of torture and no request in the solicitors’ representations for a further medical examination. The Secretary of State was therefore under no duty to arrange one. The claim had no realistic prospect of success and was clearly unfounded.

• Court of Appeal (Civil Division) — dismissed YH’s appeal in [2010] EWCA Civ 116 and upheld the dismissal of judicial review.

• High Court, Administrative Court — Cranston J dismissed the application for judicial review on 12 September 2008.