SS (Afghanistan), R (on the application of) v Secretary of state for the home department

For a fresh claim under paragraph 353 of the Immigration Rules, further submissions are significantly different only where their content has not already been considered and, taken with the earlier material, creates a realistic prospect of success despite the decision-maker’s rejection. Judicial review remains review of the Secretary of State’s decision, not a de novo hearing, although the court may exercise its own judgment on that question. A later expert report that merely repeats or expands earlier risk assessments, without genuinely new material or developments, does not justify a different conclusion.

SS, an Afghan asylum seeker, had exhausted his appeal rights after his original asylum claim failed. In July 2009 he made further submissions under paragraph 353 of the Immigration Rules, relying principally on an expert report concerning risks from General Dostum, his supporters and the Taliban. The Secretary of State concluded that the submissions did not amount to a fresh claim. Beatson J refused a renewed application for permission to seek judicial review. Before the Court of Appeal, SS relied on a second report by the same expert, arguing that it supplied genuinely fresh evidence and addressed the earlier report’s conditional assessment. The central issue was whether the second report could justify a different conclusion.

1. Outcome. The renewed application for permission to appeal was refused. Tomlinson LJ gave the reasons, and Elias and Ward LJJ agreed.
2. Under paragraph 353 of the Immigration Rules, further submissions are significantly different only if their content has not already been considered and, taken together with the earlier material, creates a realistic prospect of success notwithstanding the decision-maker’s rejection of them.
3. The approach remains one of judicial review rather than a de novo hearing. The court may exercise its own judgment, but the issue is assessed on the material available to the Secretary of State. As explained in YH v Secretary of State for the Home Department [2010] EWCA Civ 116, the relevant question is whether there would be a realistic prospect of success before an adjudicator, rather than merely whether the Secretary of State was entitled to regard an appeal as hopeless.
4. The second Marsden report did not contain genuinely fresh material. Its discussion of Afghan blood feuds, the risk from Dostum’s commanders and the Taliban, and the possibility or probability of revenge substantially repeated the first report. It relied on no new developments showing that the risk had increased. The report therefore could not properly lead the court to a different conclusion from that reached by Beatson J.
5. It was unnecessary to determine the proper approach to fresh evidence on an application of this kind. The Secretary of State’s reliance on the principles in Ladd v Marshall [1954] 1 WLR 1489, and the suggested safeguards arising from the ability to make a further application, consequently did not require resolution.

1. Court of Appeal (Civil Division): On 18 January 2011, the court refused the renewed application for permission to appeal. The order was: application refused.
2. Queen’s Bench Division, Administrative Court: Beatson J refused renewed permission to apply for judicial review of the Secretary of State’s refusal to treat the July 2009 representations as a fresh claim.
3. Earlier immigration appeal proceedings: An adjudicator allowed SS’s initial appeal in January 2003, but the Secretary of State’s appeal was allowed by the Immigration Appeal Tribunal in December 2003. Permission to appeal was refused and appeal rights were exhausted by 16 January 2004.