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

A fresh asylum or human rights claim must contain material that is significantly different from the evidence previously considered and that creates a realistic prospect of success when taken with that evidence. The threshold is modest. The court reviewing the Secretary of State’s decision must not determine the underlying claim itself. It asks whether a new immigration judge, considering the new material alongside the earlier findings, might reach a different conclusion. For practical purposes, the test under rule 353 of the Immigration Rules and the related statutory certification test may be treated as materially the same where any theoretical difference has no practical significance.

The claimant’s asylum, humanitarian protection and human rights claims had been refused by an immigration judge, and his appeal rights became exhausted on 1 December 2008. He then relied on further material concerning the possible withdrawal of his Bosnian citizenship, removal to Tunisia, and the risk of detention and ill-treatment there.

The Secretary of State concluded that the further submissions did not amount to a fresh claim. The judicial review concerned whether that conclusion was lawful under the applicable fresh-claim test.

1. Applicable test. The court proceeded on the basis accepted by both parties that the test under rule 353 of the Immigration Rules and the relevant statutory scheme were, for practical purposes, the same. Any theoretical distinction between them had no practical significance in this case, following the approach discussed in The Queen on the application of YH v Secretary of State for the Home Department [2010] EWCA Civ 116. The statutory context had also been considered by the Supreme Court in BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7.
2. Further submissions amount to a fresh claim where they are significantly different because their content was not previously considered and, taken with the earlier material, creates a realistic prospect of success. The court must assess the prospect of a different outcome before a new immigration judge, rather than decide the underlying asylum or human rights claim itself.
3. The new evidence did not establish that the claimant’s Bosnian citizenship had already been withdrawn. It did, however, raise a realistic prospect that a new immigration judge might conclude that the operation of the State Commission after the claimant’s passport was returned in 2005 created a risk of refoulement from Bosnia to Tunisia. That aspect of the evidence had not been fully or clearly explored previously.
4. The evidence concerning detention and ill-treatment in Tunisia was inconsistent and largely concerned higher-profile individuals. Nevertheless, it was sufficient, albeit just, to cross the modest threshold. There was a realistic prospect that a new immigration judge might reach a different conclusion on the risk arising from detention while the Tunisian authorities investigated the claimant’s history.

The fresh claim challenge therefore succeeded. The claimant was entitled to have the further submissions considered as a fresh claim. The claimant obtained an order for detailed assessment of costs, with the relevant earlier costs offset, and a public funding certificate.