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

On an application concerning a fresh claim under paragraph 353 of the Immigration Rules, the court must form its own view whether the further material gives rise to a realistic prospect of success before an immigration judge. The exercise remains judicial review, not a rehearing, and is confined to material available to the Secretary of State. The threshold is low, but the further material must address the significant evidential difficulties identified in the earlier decision. In assessing expert evidence about documents, the decision-maker may consider the expert’s qualifications, the source and quality of the document examined, and whether the evidence addresses its authenticity, provenance and connection with the claimant’s account. A decision under paragraph 395C is adequate where the claimant is told why the relevant removal factors do not prevent removal.

The claimant, a Burmese national, sought judicial review of the Secretary of State’s refusal to treat further representations as a fresh claim under paragraph 353 of the Immigration Rules. His earlier asylum claim had been refused and his appeal dismissed on credibility grounds, including a finding that his limited participation in demonstrations did not place him at risk under the country guidance in TL and Others (Burma) 2009 UKAIT 00017.

After removal directions were issued, the claimant produced a purported Burmese arrest warrant and a report from Dr Mullen. He argued that this material created a realistic prospect of a successful further appeal and that the Secretary of State had failed to consider paragraph 395C. He also relied on the subsequent Court of Appeal decision in JA (Burma) v Secretary of State for the Home Department, reference 2010/0516.

1. Fresh claim threshold. The governing question was whether, taking the new material together with material previously considered, there was a realistic prospect that another immigration judge would conclude that removal breached the claimant’s Convention rights. Following R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116, the court was entitled to exercise its own judgment on that threshold question. The exercise nevertheless remained judicial review, not a de novo hearing, and had to be based on material available to the Secretary of State.
2. The threshold was low, but the arrest warrant and Dr Mullen’s report did not meet it. The Secretary of State had rational grounds to question the expert’s relevant qualifications, his reliance on a scanned copy rather than the original, and the absence of expertise in evaluating documents of that kind. More importantly, the report did not address the warrant’s alleged offence, timing, provenance, transmission through the claimant’s mother, or its connection with the claimant’s account of political activity. Those omissions meant that the material did not create a realistic prospect of success. The approach was consistent with the guidance in Tanveer Ahmed [2002] UKAIT 00439.
3. Paragraph 395C. The Secretary of State had considered the relevant paragraph in the earlier decision letter and had explained why none of the specified factors prevented removal. The claimant therefore knew the basis on which the removal decision had been made.
4. Burma country guidance. The Court of Appeal’s decision in JA (Burma) v Secretary of State for the Home Department concerned inadequate reasons for classifying an appellant as a hanger-on. It did not cast doubt on the country guidance itself. The claimant’s tribunal had applied that guidance and explained why he fell within the relevant category. The later decision therefore did not assist him, and no adjournment was justified.
5. All grounds of challenge were rejected and the application for judicial review was dismissed. Costs were subject to section 11 of the Access to Justice Act, with enforcement requiring leave of the court.

The judgment was a first-instance judicial review decision. The claimant’s earlier asylum appeal had been dismissed by an immigration tribunal on 23 July 2010, and permission to appeal to the Upper Tribunal had been refused on 16 August 2010. The present application was dismissed by the Administrative Court.