Nasire, 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 earlier material, create a realistic prospect of success. This framework applies equally to humanitarian-protection claims based on Article 15(c) of the Qualification Directive. A refusal of further submissions does not itself create an immigration decision or a right of appeal unless the paragraph 353 test is met. Removal need not automatically await a pending country-guidance case. It should be deferred where the pending evidence might reasonably lead to a different outcome and is likely to affect the claimant’s case.

The claimant, an Afghan national whose asylum and human-rights claims had been refused and whose appeal rights were exhausted, made further representations based on deteriorating conditions in Afghanistan and Article 15(c) of the Qualification Directive. The Secretary of State rejected them as not amounting to a fresh claim and concluded that there was no further right of appeal. The claimant sought judicial review, arguing that paragraph 353 did not govern Article 15(c) claims, that BA (Nigeria) required a further immigration decision, and that removal should await the country-guidance determination in GS (Afghanistan).

1. Fresh claim. Paragraph 353 of the Immigration Rules requires consideration of whether further submissions are significantly different and, taken with previously considered material, create a realistic prospect of success. The court accepted the agreed Wednesbury approach, while also considering whether the Secretary of State’s decision was correct. The decisions were rational, adequately reasoned and reached after anxious scrutiny. The updated civilian-casualty figures did not materially advance the claim, and the challenge failed (paras [39]–[42], [59]–[65]).
2. Right of appeal. Applying ZA (Nigeria), outside the deportation context a refusal of further submissions does not require a fresh immigration decision unless the representations satisfy paragraph 353. The claimant therefore acquired no further in-country right of appeal (paras [43]–[48], [66]).
3. Humanitarian protection. Paragraph 353 applies to further submissions invoking humanitarian protection, including Article 15(c). This follows from the structure and purpose of the Rules, including paragraphs 326A and 327. Alternatively, the provision must be read consistently with EU-law principles of equivalence and effectiveness, applying Marleasing SA v La Comercial Internacional de Alimentacion SA and the reasoning in FA (Iraq). The provision applies even where the Qualification Directive is relied on for the first time in later representations, provided an earlier relevant claim has failed (paras [67]–[90]).
4. Pending country guidance. Lutete establishes no automatic rule requiring removal to be deferred whenever a country-guidance case is pending. The Secretary of State must assess the individual claim and objective evidence rationally and fairly. Deferral is required where evidence might reasonably result in a different decision and is being, or is likely to be, evaluated in the pending case. Those circumstances were absent here (paras [91]–[94]).
5. The judicial-review application was dismissed. Costs were left for further submissions (para [95]).

Permission to apply for judicial review was granted by Stuart Isaacs QC, sitting as a Deputy High Court Judge, on 26 March 2010. The present court dismissed the judicial-review application.