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

Under paragraph 353 of the Immigration Rules, further submissions must first be assessed to determine whether they are significantly different from material previously considered. Only if that threshold is met must the decision-maker consider whether the material, taken with the earlier material, creates a realistic prospect of success before an immigration judge.

The decision-maker must apply anxious scrutiny and ask the correct question. A report which substantially repeats earlier evidence, with only updated information about the same risk, is not necessarily significantly different. Where the first threshold is not met, the second question does not arise.

The claimant, an Algerian national, had previously been refused asylum and had pursued unsuccessful appeals. He made successive further submissions. The judicial review concerned the Secretary of State’s decision of 15 September 2007 refusing to treat his third set of submissions as a fresh claim under paragraph 353 of the Immigration Rules.

The third submissions relied principally on an updated expert report and the pending country-guidance case AF (Algeria) CG. The central issues were whether the material was significantly different from material previously considered and, if so, whether it created a realistic prospect of success.

1. The claim for judicial review was dismissed. The Secretary of State’s decision was rational and had applied sufficient scrutiny.

2. Paragraph 353 requires a sequential assessment. The decision-maker must first decide whether the further material is significantly different from material already considered. If it is not, the inquiry ends. Only if it is significantly different is the decision-maker required to ask whether the material, taken with the earlier material, creates a realistic prospect of success.

3. The approach in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 was applied. The decision-maker must ask whether an immigration judge, applying anxious scrutiny, could realistically conclude that the claimant faces a real risk on return. Anxious scrutiny applies both to factual evaluation and to the legal conclusions drawn from the facts.

4. The principle in R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768 was applied. Material must be new in the relevant sense and sufficiently different from the earlier claim to create a realistic prospect of a favourable outcome.

5. The updated report substantially repeated the earlier expert report and the matters already advanced before the adjudicator. Its view that the risk had heightened since 2007 was new information about previously considered material, not a significantly different submission. The claimant’s reliance on AF (Algeria) CG did not alter that conclusion because his profile was materially different and lacked the exceptional features identified in that case.

6. Since the first threshold was not met, the Secretary of State was not required to consider the second hypothetical question. The court nevertheless observed that the material would not have created a realistic prospect of success even if that question had arisen.

The judgment records that the claimant’s original asylum claim was refused, his appeal was dismissed by an adjudicator, and a further appeal to the Immigration Appeal Tribunal was rejected. Permission to seek judicial review of that decision was refused. The present proceedings challenged only the Secretary of State’s decision of 15 September 2007 concerning the third fresh claim.