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

In a fresh-claim asylum case, the reviewing court must ask whether the Secretary of State’s decision was legally rational, applying anxious scrutiny and the Wednesbury standard. The court must consider the new material together with the evidence previously rejected and ask whether it creates a realistic prospect of success before another immigration judge. Medical evidence may be highly relevant to credibility, but evidence that injuries are consistent with torture does not, without more, establish the persecutory account or its political cause. The Secretary of State need not provide a detailed analysis of every item, provided that the correct question was asked and the relevant evidence was considered. New expert evidence will ordinarily be considered through the fresh-representations procedure rather than admitted late on an appeal confined to errors of law.

The appellant, a Ugandan national, claimed asylum on the basis that he had been detained and tortured because of political activity for the Forum for Democratic Change. His asylum appeal was dismissed, and later applications and judicial-review proceedings failed. He then made further representations relying principally on medical evidence concerning scarring, torture and post-traumatic stress disorder. The Secretary of State rejected the representations as not constituting a fresh claim under paragraph 353 of the Immigration Rules. Hickinbottom J concluded that there was no realistic prospect of success before another immigration judge. The appeal concerned the proper approach to that conclusion, the effect of the medical evidence, and an application to adduce a further psychological report.

1. Appeal dismissed. The court upheld the conclusion that the further representations did not create a fresh claim and refused the application to adduce Dr Chisholm’s report.
2. For a challenge under paragraph 353 of the Immigration Rules, the correct review question is whether, applying anxious scrutiny, the Secretary of State acted irrationally in concluding that the new material, considered with the previously considered material, gave no realistic prospect of success before another immigration judge. The court followed WM (DRC) [2006] EWCA Civ 1495, as reaffirmed in TK [2009] EWCA Civ 1550 and applied in MN (Tanzania) [2011] EWCA Civ 193. It did not follow the broader approach attributed to KH (Afghanistan) [2009] EWCA Civ 1354 and YH [2010] EWCA Civ 119.
3. The medical evidence was new and relevant, but it did not materially undermine the original credibility findings. Evidence that scarring was consistent with non-accidental injury or torture could not establish that the appellant had been detained because of political activity. The immigration judge had considered the possible effect of PTSD on memory and concentration and was entitled to conclude that it did not explain the major discrepancies, implausibilities and documentary weaknesses in the account.
4. The Secretary of State’s reference to Dr Bird’s report as not being “conclusive” was an incorrect formulation. It was not material because the Secretary of State had considered the evidence as a whole and the conclusion that there was no realistic prospect of success was inevitable.
5. Under rule 52.11(2) of the Civil Procedure Rules 1998, the court had discretion to admit evidence not before the lower court. That discretion is exercised flexibly but fairly and exceptionally in asylum cases, having regard to the limited scope of an error-of-law appeal and the principles in E v SSHD [2004] EWCA Civ 49. The late report could be put before the Secretary of State in further representations and was therefore not admitted.

Order: Appeal dismissed. Application refused.

• Court of Appeal (Civil Division) — Appeal from Hickinbottom J in the Queen’s Bench Division, Administrative Court. The appeal was dismissed and the application to adduce further evidence was refused.
• Administrative Court — Hickinbottom J considered the challenge to the refusal to treat the further representations as a fresh claim and concluded that there was no realistic prospect of success before another immigration judge.