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

Under Rule 353 of the Immigration Rules, the Secretary of State must assess whether new material is significantly different and, with the earlier material, creates a realistic prospect of success. That assessment includes the reliability of the new material and the outcome a tribunal might reach. Judicial review applies the Wednesbury standard; the court must not substitute its own view. A decision letter need not recite the guidance verbatim, although clear compliance is desirable. A challenge cannot depend on a materially different case that was never put to the Secretary of State.

Mr AA, a Pakistani national, challenged the Secretary of State’s refusal to treat further evidence as a fresh asylum claim. His original claim concerned alleged political persecution, a false murder charge and the risk of imprisonment or execution. An Immigration Judge had rejected his evidence and found that, even if the charge were genuine, the Pakistani legal process would not lead to punishment.

The Secretary of State considered further documents, including an arrest warrant, lawyers’ letters, party evidence and additional FIRs. Mr AA sought judicial review of the refusal. The appeal concerned whether the Secretary of State had applied Rule 353 lawfully, whether the decision adequately assessed the documents, and whether later arguments about detention after acquittal could be relied upon when they had not been advanced to the decision-maker.

Disposition. Sir Richard Buxton concluded that the appeal should be dismissed, and Lord Justice Longmore agreed. The transcript nevertheless ends with an order recording Appeal allowed. The supplied judgment therefore contains a material inconsistency as to the formal disposition.

1. Rule 353 and review. Under Rule 353 of the Immigration Rules, the Secretary of State had to consider whether the further material was significantly different and whether, taken with the earlier material, it created a realistic prospect of success. Following WM (DRC), the assessment required consideration of both the reliability of the new evidence and the result a tribunal might reach. The reviewing court had to apply Wednesbury unreasonableness and could not decide the merits for itself. This approach had recently been confirmed in MN (Tanzania) ([2011] EWCA Civ 193).
2. Decision letter. The Secretary of State’s letter did not clearly separate the authenticity of the documents from what they demonstrated. The court considered that the Secretary of State had not satisfactorily discharged her duty in those respects, even applying the Wednesbury standard. Failure to recite the guidance from WM (DRC) did not automatically invalidate the decision, but clear compliance on the face of the decision was highly desirable.
3. Realistic prospect of success. The earlier Immigration Judge had considered the state of the Pakistani legal system, with reference to MI (Fair Trial – Pre-Trial Conditions) Pakistan v SSHD CG ([2002] UKIAT 02239). The updated evidence did not establish a real possibility of a thoroughly unfair trial. The appellant’s alibi meant that, even if the charge were accepted as genuine, he would not be convicted or punished. The further material therefore did not create a realistic prospect of success.
4. Case not put to the decision-maker. General prison conditions and diabetes did not independently establish persecution or Article 3 ill-treatment. The argument that Mr AA might remain detained after acquittal had not been put to the Secretary of State. The court could not treat the decision as unreasonable for failing to address that new case, or substitute its own decision on evidence not before the Secretary of State.

• Court of Appeal (Civil Division): The reasoned judgment dated 10 March 2011 concluded that the appeal should be dismissed, with Lord Justice Longmore agreeing. The transcript’s final order records that the appeal was allowed: [2011] EWCA Civ 443.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Judicial review proceedings concerning the Secretary of State’s refusal of a further fresh asylum claim were brought before Mr Christopher Symons QC. The judgment under appeal and its citation are not stated.