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

Whether further representations constitute a fresh claim under paragraph 353 of the Immigration Rules is reviewable only on Wednesbury grounds. The question is whether an independent immigration tribunal might realistically accept the new material, considered together with the material previously examined, and allow the asylum or human rights claim.

Earlier findings that an applicant was credible are relevant, although they do not determine the assessment of later evidence. Before concluding that new evidence is so incredible that there is no realistic prospect of acceptance, the Secretary of State must identify a rational and cogent basis. Suspicion, evidential weakness and the absence of corroboration may be matters for the tribunal at a full hearing, but do not necessarily eliminate a realistic prospect of success.

The claimant, an Iraqi Christian from Mosul, challenged decisions of the Secretary of State refusing to treat further representations as a fresh asylum claim under paragraph 353 of the Immigration Rules. The representations relied principally on evidence that his brother had been refused entry to, detained and assaulted in the Kurdish Regional Government area, together with medical and photographic evidence. Later representations also referred to the claimant’s earlier work connected with Iraqi television under Saddam Hussein.

Permission to seek judicial review of the first decision was granted by Mitting J. The claimant subsequently challenged the second decision as well. The central issues were whether the Secretary of State had applied the correct realistic-prospect test and whether her treatment of the evidence was irrational or inadequately reasoned.

1. Outcome. The claim succeeded in part. The first decision was quashed. The challenge to the second decision concerning the claimant’s television work was rejected.
2. The applicable test was whether an independent immigration tribunal might realistically reach a conclusion favourable to the claimant on considering the new material together with the material previously considered. The Secretary of State’s conclusion could be challenged only on Wednesbury grounds: [2006] EWCA Civ 1495; [2010] EWCA Civ 1550; [2011] EWCA Civ 193; and [2007] EWCA Civ 535.
3. Earlier findings that the claimant was credible did not mean that his later evidence had to be accepted. They were, however, plainly relevant. The Secretary of State needed a rational and cogent basis before concluding that the new evidence was so incredible that no immigration judge could realistically accept it: [2010] EWCA Civ 116.
4. The Secretary of State had treated hearsay evidence, the absence of a statement from the claimant’s brother, the medical reports and the photographs with excessive scepticism. Those matters might justify rejection after testing at a full hearing, but they did not show that acceptance was fanciful. The evidence could realistically be found credible, and the medical and photographic material could realistically be found consistent with a beating.
5. The Secretary of State had not applied the wrong legal test. The error lay in reaching an irrational answer on the evidence. The later television-work claim was different: the Secretary of State was entitled to take account of its late presentation, the absence of the DVD and the lack of persuasive evidence that the claimant would be recognised.

This was a first-instance judicial review. The claimant’s original asylum appeal had been dismissed by the Asylum and Immigration Tribunal, and a subsequent reconsideration also dismissed the appeal. Mitting J later granted permission to challenge the first fresh-claim decision. This court quashed that decision but rejected the challenge to the later decision.