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

A refusal under rule 353 of the Immigration Rules to treat further asylum or human-rights submissions as a fresh claim is reviewed on Wednesbury grounds, with anxious scrutiny. The reviewing court does not substitute its own assessment of whether an appeal has a realistic prospect of success.

In an Article 3 claim based on suicide risk, the threshold is particularly high. Whether the fear underlying the risk is objectively well-founded, and whether effective mechanisms exist to reduce that risk, are highly relevant. Available treatment may therefore weigh heavily against a finding that removal would breach Article 3.

The appellant, a Tanzanian national living with HIV and mental-health difficulties, submitted a psychiatric report after her asylum and human-rights claims had failed. The Secretary of State considered it under rule 353 of the Immigration Rules but refused to treat it as a fresh claim. Owen J dismissed her application for judicial review: [2010] EWHC 1871 (Admin).

The appeal concerned whether that refusal was reviewable only on Wednesbury grounds, with anxious scrutiny, or whether the court should decide for itself whether an appeal had a realistic prospect of success. It also raised whether the Secretary of State could rationally conclude that claims based on HIV, mental-health treatment and suicide risk had no realistic prospect of success.

1. The appeal was dismissed unanimously. The correct test on judicial review of a refusal under rule 353 of the Immigration Rules is Wednesbury irrationality, subject to anxious scrutiny. The Administrative Court does not substitute its own judgment on whether the further submissions have a realistic prospect of success before an immigration judge.

2. The court followed WM (DRC) and TK. The House of Lords decision in ZT (Kosovo) did not establish that a different standard applies to rule 353 decisions. KH (Afghanistan) conflicted with TK and may have been decided per incuriam. Applying the first exception in Young v Bristol Aeroplane Co Ltd, the court was entitled and bound to choose between conflicting Court of Appeal decisions and followed TK. The ratio of YH was confined to certification under section 94 of the Nationality, Immigration and Asylum Act 2002.

3. A different approach to rule 353 and section 94 was not illogical. A rule 353 applicant has already had access to the immigration appellate system, whereas section 94 may deny that access at the outset.

4. The Secretary of State rationally concluded that the HIV claim had no realistic prospect of success. Objective evidence showed that relevant medication and medical facilities were available in Tanzania. The claim came nowhere near the stringent threshold governing foreign medical cases under Article 3.

5. The suicide-risk claim was governed by the guidance in J. The Article 3 threshold is particularly high in a foreign case. An objectively unfounded fear underlying the alleged suicide risk weighs against a real risk of breach, while effective treatment or protective mechanisms weigh heavily against it. The appellant’s fear that HIV treatment would be unavailable was not objectively well-founded, and objective evidence showed that mental-health facilities existed. The Secretary of State was therefore entitled to find no realistic prospect of success under Articles 3 or 8.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the rule 353 refusal and Owen J’s application of the Wednesbury test: [2011] EWCA Civ 193.
2. High Court, Administrative Court: Owen J dismissed both grounds of judicial review, including the challenge to the refusal to treat the further submissions as a fresh claim: [2010] EWHC 1871 (Admin).