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

Under paragraph 353 of the Immigration Rules, further asylum or human-rights submissions require a two-stage assessment. The material must be significantly different and, taken with earlier material, must create a realistic prospect of success before an immigration judge. Judicial review examines whether the Secretary of State asked the right question, applied anxious scrutiny and reached a rational conclusion. Country guidance did not make Rabwah generally safe or unsafe. Internal relocation remained fact-sensitive. On the established facts, the appellant’s low profile and absence of persecution in Rabwah or Jaranwala supported the conclusion that he could relocate safely. The refusal to treat the submissions as a fresh claim was lawful. The appeal was dismissed.

The appellant, an Ahmadi from Pakistan, challenged the Secretary of State’s decision of 27 November 2008 refusing to treat further representations as a fresh asylum or human-rights claim under paragraph 353 of the Immigration Rules. An earlier adjudicator had accepted possible persecution in Karachi and possible risk in minority areas, but had found relocation to Rabwah safe and not unduly harsh, with no established present risk in Jaranwala.

The further representations relied on later country guidance concerning Ahmadis, including IA and Others (Ahmadis: Rabwah) Pakistan CG [2007] UKAIT 00088 and MJ and ZM (Ahmadis, Risk) Pakistan CG [2008] UKAIT 00033. The Administrative Court dismissed the judicial review claim on 19 June 2009. The central issue on appeal was whether the Secretary of State irrationally concluded that there was no realistic prospect of success before an immigration judge.

Appeal dismissed. The Court of Appeal upheld the dismissal of the judicial review claim. The Secretary of State was entitled to take steps to remove the appellant.

1. Review and fresh claims. On an appeal from judicial review of a paragraph 353 decision, the Court of Appeal’s essential task remains to review the Secretary of State’s decision on Wednesbury grounds, while paying due respect to the lower court. Under R (on the application of WM (DRC)) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the Secretary of State must first decide whether the further material is significantly different because its content has not already been considered. If so, the Secretary of State must then assess whether the new and earlier material together create a realistic prospect of success before a tribunal. That assessment includes the likely outcome of proceedings before an immigration judge.
2. Judicial review standard. The court must consider whether the Secretary of State asked the correct question, applied anxious scrutiny and reached a rational conclusion. The approach confirmed in ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 W.L.R. 348 applied. Where the court concludes that the claim has a realistic prospect of success despite the Secretary of State’s contrary view, the contrary view will necessarily be irrational.
3. Internal relocation. The country guidance in IA and Others (Ahmadis: Rabwah) Pakistan CG [2007] UKAIT 00088, as explained by the Court of Appeal in Secretary of State v IA (Pakistan) [2008] EWCA Civ 580, did not make Rabwah either generically safe or generically unsafe. The question had to be determined case by case, by reference to the individual’s risk and the reasons for it. The distinction between persecution by the KN and ill-treatment by the police was too flimsy to justify treating the guidance as irrelevant.
4. Application. Nevertheless, the adjudicator’s findings remained material. The appellant had not been persecuted in Rabwah, had no prominent or high-profile preaching role, and was not particularly conspicuous. The established harm was localised. There was no evidence of institutional or national pursuit, no established risk in Jaranwala, and no evidential basis for concluding that he was at risk throughout Pakistan. In light of MJ and ZM (Ahmadis, Risk) Pakistan CG [2008] UKAIT 00033, it was open to the Secretary of State to conclude that there was no realistic prospect of a different decision by an immigration judge.
5. Late reliance on HJ (Iran). The argument based on HJ (Iran) (FC) v the Secretary of State for the Home Department [2010] UKSC 31 had not been advanced below and was not required for the decision. In any event, it did not assist the appellant because the factual findings showed that his religious activity was not sufficiently prominent to create the asserted risk.

• Court of Appeal (Civil Division) — dismissed the appeal from the Administrative Court and upheld the refusal to treat the further representations as a fresh claim.
• Queen’s Bench Division, Administrative Court — Mr Stephen Morris QC, sitting as an additional judge, dismissed the judicial review claim on 19 June 2009.
• Secretary of State — rejected further representations on 27 November 2008 under paragraph 353 of the Immigration Rules.