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

Under rule 353 of the Immigration Rules, further submissions amount to a fresh claim where they contain material not previously considered and, taken with the earlier material, create a realistic prospect that an adjudicator applying anxious scrutiny would allow the claim. The Secretary of State must ask that distinct question rather than decide whether the claim would succeed. The court reviews the decision on irrationality grounds, but anxious scrutiny is inherent in that review. New evidence must be assessed together with earlier credibility findings. Documents need not be accepted as reliable at this stage where they are capable of carrying some weight and are not manifestly contrived or riddled with inconsistencies.

The claimant, an Afghan national and failed asylum seeker, relied on further submissions concerning the disappearance of his brother after the brother’s removal to Afghanistan. The submissions included an alleged police report, a newspaper cutting and supporting letters. The Secretary of State rejected the contention that they amounted to a fresh claim under rule 353. The claimant sought judicial review, arguing that the new material, considered with the Immigration Judge’s findings that his core account and fear were genuine, created a realistic prospect of success. The central issue was whether the Secretary of State had applied the correct test with anxious scrutiny.

1. The application was granted. The claimant obtained judgment with costs.
2. Rule 353 requires two judgments. First, whether the further material is significantly different because its content has not previously been considered. Secondly, whether the new and earlier material together create a realistic prospect of success. The second question is not whether the Secretary of State considers the claim meritorious, but whether an adjudicator applying anxious scrutiny might conclude that return would expose the claimant to a real risk of persecution.
3. The court’s review remains based on irrationality, but a decision is irrational if it was not reached with anxious scrutiny. The reliability of new material must be evaluated in combination with the earlier material and relevant previous credibility findings. Earlier adverse findings do not automatically undermine material which does not originate from the applicant.
4. The claimant’s convictions and limited adverse credibility findings did not make the documents intrinsically unreliable. Although their authenticity and accuracy required further investigation, they were not manifestly contrived or riddled with inconsistencies. The absence of any reference to Haji Mirza, and the reference instead to the Taliban as the alleged kidnappers, could arguably support rather than undermine the claimant’s case and required assessment by an Immigration Judge.
5. There was therefore a realistic prospect that an Immigration Judge, considering the brother’s disappearance with the whole evidential picture and applying anxious scrutiny, would find a real risk of persecution on return. The decision was quashed and the matter was to be reconsidered.