A-S v Secretary of State for the Home Department

Under paragraph 353 of the Immigration Rules, the Secretary of State must first ask whether further submissions contain material not previously considered. If so, the Secretary of State must assess whether, taken with the earlier material, they create a realistic prospect of success before an immigration judge. The assessment requires anxious scrutiny, but the threshold is modest. Judicial review remains limited to whether the correct questions were asked and whether the decision was irrational or otherwise unlawful on Wednesbury grounds. A severe practical impasse, including inability to obtain travel documents, does not itself establish irrationality or create a fresh claim. Evidence addressing the consequences of an earlier refusal does not necessarily alter the underlying evidential failure on which that refusal was based.

The claimant, a failed asylum seeker from Kuwait who claimed to be an ethnic stateless Bedoon, 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 original asylum claim had failed because the immigration judge did not accept that he was a Bedoon or that his green identification card was genuine.

Afterward, the claimant was unable to obtain assistance or travel documents from the Kuwaiti Embassy and received decisions from Asylum Support Tribunals that he was taking all reasonable steps to leave the United Kingdom. He relied on those matters as new evidence. The central issue was whether the Secretary of State’s decision that the further submissions did not create a realistic prospect of success was unlawful.

1. Application dismissed. The claimant’s circumstances created a serious bureaucratic impasse, but that did not make the Secretary of State’s decision irrational or unreasonable.
2. Paragraph 353 required two questions. First, whether the further material had not already been considered. Secondly, if so, whether the material, taken together with the previously considered material, created a realistic prospect of success before an immigration judge.
3. The realistic prospect threshold was modest. Nevertheless, the Secretary of State retained the decision-making function. Applying [2005] EWCA Civ 1830, [2006] EWCA Civ 1495 and [2007] EWCA Civ 535, judicial review asked whether the correct questions had been asked and whether the decision had been reached with anxious scrutiny. The court was not entitled simply to substitute its own view.
4. Although the Asylum Support Tribunals had found that the claimant was taking all reasonable steps to leave, their decisions concerned entitlement to support and did not determine whether he was a Bedoon or whether he faced persecution. The Secretary of State was therefore not bound by those findings.
5. The subsequent events showed the consequences of the original refusal, including the Kuwaiti Embassy’s refusal to assist and the claimant’s inability to obtain travel documents. They did not provide further evidence capable of overcoming the continuing doubts about the green card. There was also no supporting evidence from the claimant’s family or other evidence establishing his claimed Bedoon status.
6. The court could not conclude that the further submissions were significantly different or that the Secretary of State’s conclusion was perverse, irrational or unreasonable. The judicial review claim was dismissed.

Permission to apply for judicial review was granted by His Honour Judge Grenfell on 23 August 2010. The substantive application was then determined at first instance by the High Court (Administrative Court).