Ismael Abdulla Omar v Secretary of State for the Home Department

In a challenge to a refusal to treat further submissions as a fresh claim, the court must form its own view of whether the material gives an immigration judge a realistic prospect of success, while remaining within the Judicial Review process and the material before the Secretary of State. The assessment is not confined to irrationality review.

For Article 15(c) of the Qualification Directive, the risk must be assessed individually. Relevant considerations include the claimant’s personal characteristics, likely destination and the level of indiscriminate violence in the area where the claimant would live. A successful challenge normally requires the decision to be quashed and, in principle, the Secretary of State to recognise that the submissions constitute a fresh claim, subject to relevant changes in circumstances.

The claimant, an Iraqi Kurd, had previously claimed asylum and resisted deportation following a criminal conviction. His appeal against the deportation decision was dismissed and reconsideration affirmed. Following Elgafaji v Staatssecretaris van Justitie, he made further submissions relying on Article 15(c) of the Qualification Directive, an expert report and background material.

The Secretary of State rejected the submissions as not amounting to a fresh claim. Permission to seek Judicial Review was granted on the alleged misdirection concerning Article 15(c), but refused on the challenge to the assessment of the expert evidence. The issues were whether paragraph 353 of the Immigration Rules applied, whether the material created a realistic prospect of success before an immigration judge, and what remedy followed.

1. Fresh-claim procedure. The principle of equivalence required references in paragraphs 353 and 353A of the Immigration Rules to asylum or human-rights claims to include claims for subsidiary protection. Paragraph 353 remained applicable where further submissions repeated an issue previously considered, and ZA (Nigeria) and SM (Congo) v Secretary of State for the Home Department did not confine it to claims that precisely repeated an earlier claim.
2. Role of the court. On an application for Judicial Review of a fresh-claim decision, the court must decide for itself whether the material creates a realistic prospect of success before an immigration judge applying anxious scrutiny. It remains Judicial Review, not a de novo hearing, and the assessment must be based on the material available to the Secretary of State. Disputed primary facts do not require deference; they may make a full appeal hearing more appropriate.
3. Article 15(c). The claimant’s individual circumstances had to be considered. The assessment could not be confined to Iraq or to Iraqi civilians generally. The claimant’s Kurdish ethnicity, his father’s Ba’ath party connection, the likely need to live in a relatively confined area, the local presence of insurgent groups and the risk in the area of intended residence were material. A serious indication of real risk could arise despite the absence of past persecution. The material therefore created a realistic, although possibly low, prospect of success.
4. Other grounds. The material did not create a realistic prospect that the claimant’s account of events in 2002 would be found credible, or that he qualified for refugee protection on that basis. Permission on that ground was refused.
5. Remedy. The impugned decision was quashed. The Secretary of State had to remake the decision under paragraph 353. In a case where the court has found a realistic prospect of success and there has been no relevant subsequent change, a mandatory order recognising the submissions as a fresh claim should in principle be available, although it was generally unnecessary to seek one because the Secretary of State should act consistently with the judgment.

• Asylum and Immigration Tribunal: The claimant’s appeal against the deportation decision was dismissed on 29 October 2008. Reconsideration was ordered, but the determination was affirmed; the decision was sent on 9 January 2009.
• High Court (Administrative Court): Sales J granted permission on the Article 15(c) ground but refused permission on the challenge concerning the expert evidence and on the separate appeal-right ground. The present court quashed the Secretary of State’s decision.