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

Under Rule 353, a fresh claim requires a two-stage assessment: whether the new claim is significantly different from earlier claims and, if so, whether it has a realistic prospect of success before an Immigration Judge. A decision-maker’s assessment is ordinarily reviewable only on irrationality grounds. Where the significant-difference requirement is accepted, the central question is whether the evidence gives the claim a realistic prospect of success. Evidence of active opposition to the regime, supported by relevant documentation and expert evidence, may satisfy that threshold. A previous case with different facts, in which the authorities were unlikely to have known of the claimant’s political activities, does not establish that a comparable claim lacks a reasonable prospect.

The claimant, a national of the Democratic Republic of the Congo, had previously made and failed an asylum claim. Her appeal rights were exhausted. Further submissions, principally based on article 8, were rejected in 2006.

In March 2009 she made further representations based on claimed political activities in the United Kingdom with APARECO UK. The defendant accepted that the claim was significantly different from the earlier claims but rejected it as not amounting to a fresh claim under Rule 353. The claimant sought judicial review. The central issue was whether her evidence disclosed a realistic prospect of success before an Immigration Judge.

1. Application granted. The defendant’s decision not to grant a right of appeal was quashed.
2. Rule 353 establishes a two-stage test: whether the claim is significantly different from previous claims and, if so, whether there is a realistic prospect that it will succeed before an Immigration Judge. Although the decision is initially for the defendant and is challengeable on irrationality grounds, a different conclusion on the same facts will ordinarily indicate irrationality.
3. The significant-difference requirement was accepted. The remaining issue was whether the claimant had a realistic prospect of establishing that she was politically active against the DRC regime in the United Kingdom.
4. The claimant relied on evidence that her APARECO activities went beyond meeting attendance and included recruiting members, together with a membership card, a supporting letter and expert evidence that APARECO members faced risk on return. The court was satisfied that this evidence created a realistic prospect of success.
5. The approach was consistent with BK [2007] UKAIT 98, as summarised in the judgment, namely that risk on return depended on political activity rather than applying automatically to every failed asylum seeker. The court considered Muma and the SSHD materially similar because an appeal on similar grounds had succeeded. Masengo and the SSHD was distinguishable on its facts: in that case the tribunal had been satisfied that the DRC authorities would not have known of the appellant’s political activities.