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

Under paragraph 353 of the Immigration Rules, further representations amount to a fresh claim only where their previously unconsidered content, taken with the earlier material, creates a realistic prospect of success before a tribunal. The test is modest but requires anxious scrutiny. New material may cast fresh light on evidence previously considered. In claims based on compelled religious discretion, the decision-maker must undertake an individual and fact-specific inquiry into what the claimant would do on return, why the claimant would act in that way, and whether fear of persecution would materially explain discreet conduct. General country guidance cannot replace that inquiry. Judicial review examines whether the correct question was asked and whether the conclusion was reasonably open to the decision-maker.

The claimant, a Pakistani Ahmadi, sought judicial review of successive refusals by the Secretary of State to treat further representations as a fresh claim under paragraph 353. His original asylum claim had been rejected by the First-tier Tribunal, which found his account false and found no risk even if it were true. Permission to appeal was refused.

The further representations relied on evidence about the alleged terrorist attack and family risks, the claimant’s and his wife’s standing in the Ahmadi community, and the claim that he would be unable to propagate his faith openly without persecution. The central issues were whether the representations had already been considered and whether they created a realistic prospect of success before a tribunal.

1. Decision quashed. The Secretary of State had asked herself the correct paragraph 353 question and had generally applied anxious scrutiny. Her conclusions on the alleged terrorist-capture account and the claimant’s professional and community standing were reasonably open to her.
2. The realistic-prospect test is modest and is not a merits determination by the reviewing court. The decision-maker must consider the new material with the material previously considered and ask whether there is a realistic prospect of success before a tribunal giving the case anxious scrutiny. The court reviews whether the correct question was asked and whether the conclusion was one a reasonable decision-maker could reach.
3. Material previously submitted has not necessarily been previously considered merely because it is absent from an earlier decision. New material may cast fresh light on evidence already considered and create a realistic prospect of success.
4. Applying HJ (Iran) and HT (Cameroon) v Home Secretary [2010] UKSC 31, a claim by an Ahmadi who said that he would propagate his faith openly required an individual and fact-specific inquiry. The Secretary of State had to assess what the claimant would do on return, why he would do it, and whether discreet conduct would materially result from a well-founded fear of persecution. Reliance on the general assessment in MJ & ZM (Ahmadis - Risk) Pakistan [2008] UKAIT 33 did not answer that question.
5. The merits of the HJ claim had not been considered by either tribunal. The Upper Tribunal’s refusal of permission did not mean that its content had already been considered for paragraph 353.
6. The failure to conduct the required individual assessment was material. It could not be said that, without the error, the HJ claim had no realistic prospect of success. The decision was quashed on that ground.

The First-tier Tribunal dismissed the claimant’s asylum appeal on 22 September 2010. Both the First-tier Tribunal and Upper Tribunal refused permission to appeal. The present judicial review claim was then considered by the High Court.