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

A fresh claim under the Immigration Rules requires a two-stage assessment. Further submissions must be significantly different because their content was not previously considered. Only then must the decision-maker ask whether, taken with the earlier material, they create a realistic prospect that an independent tribunal would allow the asylum or human rights claim. On judicial review, a properly directed Secretary of State’s assessment may be disturbed only on traditional Wednesbury grounds. Evidence about unsuccessful attempts to obtain travel documents, or findings in support proceedings, will not necessarily undermine earlier credibility findings. Where the new material does not address the central evidential deficit, the refusal to treat it as a fresh claim may stand, even if the applicant’s position is unsatisfactory.

The appellant claimed asylum as an undocumented Bidoon from Kuwait. The Secretary of State and an Immigration Judge rejected his identity and credibility evidence, and his appeal rights were exhausted. Later attempts to obtain Kuwaiti travel documents, together with two Asylum Support Tribunal decisions restoring support under section 4 of the Immigration and Asylum Act 1999 on the basis that he had taken reasonable steps to return, were relied on as new material.

The Secretary of State refused to treat the further submissions as a fresh claim under Rule 353 of the Immigration Rules. HHJ Kaye QC, sitting as a deputy High Court judge, refused judicial review. The issue on appeal was whether the later material created a realistic prospect of a different asylum decision when considered with the earlier evidence, and whether the Secretary of State’s assessment was unlawful.

Lord Justice Elias gave the judgment, with Lady Justice Hallett and Lord Justice Thomas agreeing. The appeal was dismissed.

1. Rule 353 test. Further submissions must first be assessed to determine whether they are significantly different from the material previously considered, which requires that their content has not already been considered. Only if that threshold is met is it necessary to ask whether, taken with the earlier material, the submissions create a realistic prospect of success. The relevant question is whether an independent tribunal might realistically decide in the applicant’s favour. The approach in WM (DRC) v SSHD [2006] EWCA Civ 1495 and AK (Afghanistan) v SSHD [2007] EWCA Civ 535 was applied. R (MM (Tanzania)) v SSHD [2011] EWCA Civ 193 confirmed that judicial review is governed by the traditional Wednesbury standard.
2. Application of the test. The Secretary of State was entitled to conclude that the later evidence did not create a realistic prospect of success. The Asylum Support Tribunal decisions concerned whether the appellant had taken reasonable steps to return to Kuwait. They did not determine whether he was a Bidoon, authenticate the green identity card, or establish that he had no genuine documents. The appellant had continued to rely on the disputed card, while no supporting evidence had been obtained from his family or other contacts in Kuwait. The new material therefore did not undermine the fundamental earlier finding that he had failed to establish that he was a Bidoon.
3. Practical circumstances. The court recognised the unsatisfactory position in which the appellant was unable either to establish a right to remain in the United Kingdom or to secure admission to Kuwait. That concern did not make the Secretary of State’s decision unlawful. The appeal accordingly failed, although discussions were being undertaken with the Kuwaiti authorities to clarify the appellant’s status and the possibility of return.

• Court of Appeal (Civil Division): Appeal dismissed.
• Queen’s Bench Division, Administrative Court: HHJ Kaye QC, sitting as a deputy High Court judge, refused judicial review of the Secretary of State’s refusal to treat the further submissions as a fresh claim.
• Immigration appeal process: The Secretary of State refused asylum in June 2007. An Immigration Judge rejected the claim and the subsequent appeals were exhausted by 5 December 2007.