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

Under paragraph 353 of the Immigration Rules, further submissions constitute a fresh claim only where they are significantly different from material previously considered and, taken with that material, create a realistic prospect of success. The threshold is low, but the prospect must be realistic rather than fanciful. The decision-maker must assess whether an independent tribunal might reasonably allow the claim, applying anxious scrutiny. Evidence may be rejected as incapable of reasonable belief where the surrounding circumstances make that conclusion justified. Credible new evidence does not necessarily establish a fresh claim if it adds no realistic prospect of a different outcome.

The claimant, an Algerian national, had arrived in the United Kingdom in 1998 and had unsuccessfully claimed asylum. His appeal rights were exhausted in 2004. He later made further submissions relying on evidence from another Algerian detainee, alleged visits by British security personnel, and an expert country report.

The Secretary of State refused the submissions under paragraph 353 of the Immigration Rules. The claimant sought judicial review, contending that the material created a realistic prospect that an immigration judge would find a real risk of persecution or ill-treatment on return to Algeria.

1. Application dismissed. The court refused permission to appeal. Costs were ordered in the usual form.
2. Paragraph 353 required consideration of whether the submissions were significantly different from material previously considered and, taken together with that material, created a realistic prospect of success. The assessment had to be conducted with anxious scrutiny because there was no appeal from an adverse paragraph 353 decision.
3. The realistic-prospect threshold was low. The question was whether an independent tribunal might realistically decide in the claimant’s favour, not whether success was more likely than not or certain. The possibility had to be realistic, however, and not merely fanciful.
4. The court applied the approach in Rahimi v Secretary of State for the Home Department [2005] EWHC 2838 (Admin). Evidence which appeared credible and could reasonably be believed should not be rejected merely because the Secretary of State did not believe it. In the present case, the alleged visits by MI5 and the police could realistically be accepted as having occurred, but they did not demonstrate any greater present risk on return than had existed when the original asylum claim was assessed.
5. The evidence concerning Mr Bendaoud did not provide a sufficient basis for a different outcome. Applying Onibiyo [1996] QB 768 and paragraph 353, the substance of the alleged interest in the claimant had already been considered. In addition, the circumstances in which the evidence emerged meant that it could not reasonably be believed. Even if that conclusion were wrong, the evidence did not create a realistic prospect of success.
6. The country-guidance material concerning persons with suspected international-terrorism connections was relevant but not exhaustive. The claimant’s circumstances did not approach the indicative category described in the guidance. The fact of being a failed asylum seeker did not itself create a risk on return.

The judgment was a first-instance judicial review decision. The claimant’s application for permission to appeal was refused by the Administrative Court.