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

A fresh asylum claim under rule 353 requires a sequential analysis. The decision-maker must first determine whether the further material has already been considered. If it has not, the material must then be assessed with the earlier evidence to determine whether it gives an adjudicator a realistic prospect of success. Judicial review applies the Wednesbury approach and does not permit the court to substitute its own view.

Late evidence may be rejected as unreliable where its timing, provenance, unexplained earlier omission and inconsistency with established facts make that the only reasonable inference. Evidence suggesting official interest may undermine an earlier finding, but does not itself establish a risk of persecution.

The appellant, an Algerian national, had exhausted an unsuccessful asylum appeal and made successive further representations under rule 353. The latest representations relied principally on evidence that his name and photograph appeared in an Algerian security dossier, supported by expert evidence and alleged visits from UK counter-terrorism services.

The Secretary of State rejected the representations as not amounting to a fresh claim. The Administrative Court, Deputy High Court Judge John Bowers QC, dismissed the judicial review claim. The appeal concerned whether the material was new, whether it could create a realistic prospect of success, and whether the evidence could reasonably be rejected as unreliable.

Appeal dismissed. Elias LJ gave the leading judgment, with Rimer LJ agreeing.

1. The Deputy High Court Judge had approached the case incorrectly by deciding for himself whether the material could constitute a fresh claim. The proper approach was nevertheless clear: under MN (Tanzania) [2011] EWCA Civ 193, review was on Wednesbury grounds, so the court was not to substitute its own conclusion for that of the Secretary of State. The decision-maker had to ask the correct question and apply anxious scrutiny to the facts and legal conclusions.
2. Rule 353 required two stages. The Secretary of State first had to decide whether the further material had already been considered. If not, he had to decide whether, taken with the earlier material, it created a realistic prospect of success.
3. If reliable, the Bendaoud evidence had not already been considered. It could support an inference that the Algerian authorities were interested in the appellant and could undermine the adjudicator’s critical finding that they were not. It did not automatically establish persecution, but, viewed with the appellant’s history of ill-treatment and other circumstances, it raised an arguable case which could not be rejected at that stage.
4. The decisive issue was reliability. The Secretary of State was entitled to take a robust view of evidence produced shortly before removal, based largely on a third party, capable of earlier deployment, supported by an unexplained account of prior omission, and inconsistent with the appellant’s earlier ability to leave Algeria. The prior credibility findings did not compel acceptance of this later account. Although evidence should not lightly be rejected without cross-examination, the Secretary of State was entitled to conclude that it had been concocted to delay removal.
5. Rimer LJ emphasised the chronology and the highly unsatisfactory evidence from the former solicitors. The Secretary of State’s refusal therefore stood and the appeal was dismissed.

• Court of Appeal (Civil Division): The appeal against the dismissal of the judicial review claim was dismissed. [2011] EWCA Civ 901.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Deputy High Court Judge John Bowers QC dismissed the claim for judicial review of the Secretary of State’s refusal to treat the further representations as a fresh claim.