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

Judicial review of a decision under paragraph 353 of the Immigration Rules is concerned with the reasonableness of the Secretary of State’s fresh-claim assessment, not with conducting an appeal against the earlier tribunal decision. The applicable standard is Wednesbury unreasonableness, applied with anxious scrutiny. The question is whether the further submissions, considered with the previously considered material, are significantly different and create a realistic prospect of success. A change in the assessment of an applicant’s age will not necessarily establish a fresh claim where the Secretary of State reasonably concludes that age would not affect the asylum, humanitarian-protection or Article 3 issues.

The claimant, an Afghan national previously treated as an unaccompanied minor, had his asylum and humanitarian-protection claims refused. An immigration judge dismissed his appeal, and reconsideration was refused. Further submissions concerning Article 15(c) of the Qualification Directive and, separately, his age and medical condition were rejected as not amounting to a fresh claim under paragraph 353 of the Immigration Rules. Removal directions were challenged by judicial review after further decision letters were issued. The central issues were whether the Secretary of State had applied the correct fresh-claim test and whether the conclusion that the further material created no realistic prospect of success was unreasonable.

1. Claim dismissed. The Secretary of State’s decision was reviewable on Wednesbury grounds, albeit with anxious scrutiny. The court adopted the position stated in MN (Tanzania) [2011] EWCA Civ 193.

2. The court’s task was to assess whether the Secretary of State reasonably declined to treat the further submissions as a fresh claim within paragraph 353 of the Immigration Rules. It was not to act as an appellate tribunal reviewing or reopening the earlier immigration judge’s findings.

3. The material had to be assessed together with the material previously considered. The Secretary of State was entitled to conclude that the new age evidence, even if it might lead an immigration judge to find that the claimant was younger, would not affect the asylum claim or create a realistic prospect of success.

4. The court likewise rejected reliance on a factual finding in another immigration appeal that Hazara people had sometimes supported the Taliban. That finding did not address the issues arising on the claimant’s own evidence and did not materially alter the fresh-claim assessment.

5. The claimant had to begin to show an arguable basis for humanitarian protection, a realistic issue concerning parental tracing or adequate reception arrangements, or an arguable Article 3 claim. The Secretary of State had reasonably concluded that the material, taken in the round, was not significantly different and did not create a realistic prospect of success.

6. Permission to appeal was refused. The claimant was ordered to pay the defendant’s costs, not enforceable without leave of the court; claimant’s publicly funded costs were to be subject to detailed assessment.

First-instance judicial review. The judgment records an earlier immigration appeal and reconsideration, but gives no citation for those decisions.