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

Judicial review of a refusal to treat further submissions as a fresh claim under paragraph 353 of the Immigration Rules applies the Wednesbury rationality test. Submissions qualify only where their content has not previously been considered and, taken with the earlier material, creates a realistic prospect of success notwithstanding rejection. Review is confined to the decision challenged and the material available when it was made. A later, unchallenged refusal cannot be introduced for the first time in a skeleton argument. The court must identify irrationality in the Secretary of State’s decision, rather than substitute its own merits assessment.

The appellant challenged the Secretary of State’s refusal dated 15 September 2007 to treat further submissions as a fresh claim under paragraph 353 of the Immigration Rules. The High Court, Administrative Court, dismissed his judicial review claim on 3 December 2010. Permission to appeal was granted on whether the judge should have considered a later refusal dated 25 August 2009 and whether he had applied the correct paragraph 353 test. The central issue was whether the 2007 decision was irrational in light of the further expert evidence and other material relied upon.

1. The appeal was dismissed. Pill LJ gave the leading judgment, with Moses and Sullivan LJJ agreeing.
2. The judicial review concerned only the Secretary of State’s decision of 15 September 2007. The later decision of 25 August 2009 was a distinct decision which had not been separately challenged, nor brought into the proceedings by amendment or fresh permission. It was therefore not open to the appellant to challenge it for the first time in a skeleton argument. Sullivan LJ expressly endorsed that conclusion.
3. The applicable supervision under paragraph 353 of the Immigration Rules was the Wednesbury rationality test. That approach had been established in MN (Tanzania) v SSHD [2011] EWCA Civ 193; other suggested tests were rejected. The approach stated in WM (DRC) v The Secretary of State [2006] EWCA Civ 1493 was accurately summarised and followed by the High Court.
4. Paragraph 353 requires two cumulative matters. The further submissions must contain material not previously considered and, taken together with the previous material, must create a realistic prospect of success notwithstanding rejection. The reviewing court asks whether the Secretary of State’s approach was irrational. It does not decide the underlying asylum claim afresh or substitute its own view of the merits.
5. The assessment had to be made by reference to the material available when the 2007 decision was taken. The Secretary of State was required to take account of the 2002 adjudicator’s findings and reasoning. The appellant’s residence in other countries, Bosnian connections, and the passage of time had been considered, and the later material did not rationally undermine the earlier finding that he lacked a significant risk profile. The alternative conclusion that there was no realistic prospect of success was also unassailable, including by reference to the approach in AF.
6. No error of law or irrationality was established. The formal order was: appeal dismissed.

• Court of Appeal (Civil Division): The appeal against the Administrative Court’s dismissal was dismissed on 2 March 2012: [2012] EWCA Civ 363.
• High Court of Justice, Queen’s Bench Division, Administrative Court: HHJ Sycamore QC dismissed the judicial review claim on 3 December 2010. No citation was stated in the judgment.