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

At the permission stage of a judicial review concerning Immigration Rules paragraph 353, the court asks whether the claimant has a reasonable prospect of establishing that the refusal to treat further submissions as a fresh claim was Wednesbury unreasonable. That requires anxious scrutiny of whether the underlying asylum claim has a reasonable prospect of success before an immigration judge. The court must give appropriate weight to earlier accepted factual findings, while assessing whether new material undermines them and considering current country guidance. Where the material presents a cogent arguable case that the decision-maker failed to assess relevant risk factors or applied the fresh-claim test inadequately, permission should be granted. The permission stage does not determine the merits of the judicial review or the asylum claim.

The claimant, a Sri Lankan Tamil, challenged the defendant’s refusal to treat further submissions as a fresh claim under paragraph 353 of the Immigration Rules. His submissions relied on changed country conditions, later country guidance and the decision in ZT. They argued that insufficient weight had been given to his accepted history of LTTE assistance, detention, ill-treatment, reporting conditions, absconding and the authorities’ continuing interest.

The court considered whether there was a reasonable prospect that the refusal was Wednesbury unreasonable and whether the underlying asylum claim had a reasonable prospect of success under the anxious-scrutiny approach.

1. Permission granted. The claimant’s submissions, taken in the round, disclosed a cogent case warranting a substantive judicial review hearing.
2. At the permission stage, the court had to decide whether there was a reasonable prospect of showing that the defendant’s decision was Wednesbury unreasonable. It first had to consider whether the asylum claim, as it then stood, had a reasonable prospect of success before an immigration judge. This was the anxious-scrutiny test identified in ZT.[2010] EWHC 415 (Admin), paras 6–7, 10–11
3. In applying that threshold, the court had to give weight to the earlier accepted findings of the Immigration Adjudicator, while accepting them unless the new material showed that they had been undermined. It also had to give appropriate weight to the most recent Sri Lankan country guidance in TK.[2010] EWHC 415 (Admin), para 7
4. The claimant had identified arguable issues concerning the assessment of accessible records, his past LTTE involvement, arrest and detention, reporting conditions, escape, scarring and other asserted risk factors. The defendant’s decision was said to have placed excessive weight on the 2004 findings and to have failed adequately to address the changed guidance and the evaluative significance of the new material.
5. The court did not determine the rival merits submissions. The substantive judicial review was to proceed with the usual directions; the case was suitable for a deputy High Court judge and was estimated to take one day.