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

Further submissions amount to a fresh claim under paragraph 353 of the Immigration Rules only where they are significantly different and, taken with the earlier material, create a realistic prospect of success before an immigration judge. The Secretary of State must assess the material in the round with anxious scrutiny, including its provenance and the claimant’s credibility. Judicial review asks whether the correct question was asked and whether anxious scrutiny was applied; the court does not decide the asylum claim afresh. A claim based on prosecution, without a Refugee Convention reason or evidence that return would breach the relevant human-rights standard, will not ordinarily satisfy the threshold. The application was dismissed.

The claimant, a Bangladeshi national, sought judicial review of the Secretary of State’s refusal to treat further representations as a fresh asylum and human-rights claim under paragraph 353 of the Immigration Rules. His original asylum appeal had been dismissed on credibility and other grounds, and his appeal rights were exhausted.

The further representations relied on Bangladeshi court documents and an expert report concerning alleged convictions, prison conditions and the possibility of a fair trial. The central issue was whether the new material, considered with the previously considered evidence, created a realistic prospect of success before an immigration judge and whether the Secretary of State’s decision was irrational or unlawful.

1. Application dismissed. The further material was significantly different from the material previously considered, but the Secretary of State had applied anxious scrutiny to it and to the evidence as a whole.
2. Under paragraph 353 of the Immigration Rules, the decision-maker must ask whether the new material, taken together with the earlier material, creates a realistic prospect that an immigration judge might allow the claim. The threshold is modest, but the assessment remains one for the Secretary of State. The reviewing court asks whether the correct question was asked and whether anxious scrutiny was applied.
3. The claimant’s earlier credibility findings remained relevant. Although evidence not originating from the claimant may reduce the significance of those findings, the court was entitled to regard the unexplained provenance, late production and procurement of the documents as matters bearing on weight and credibility. The expert’s verification of the documents did not resolve those concerns.
4. The substance of the claim was fear of prosecution and prison conditions, rather than persecution for a Refugee Convention reason. The material did not establish a realistic prospect of success on that basis. The country guidance in SH (prison conditions) Bangladesh CG [2008] UKAIT 00076 was relied on in concluding that Bangladeshi prison conditions did not breach Articles 2 or 3 of the Convention.
5. The Article 8 complaint did not alter the result. Family life and the children’s residence had been considered, removal would be as a family group, and any relevant rights would be reconsidered before actual removal. The Secretary of State’s decisions were within the range of reasonable responses and were not Wednesbury unreasonable, irrational or unlawful.

First-instance judicial review application. The application was dismissed by the High Court (Administrative Court).