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

Under paragraph 353 of the Immigration Rules, further submissions constitute a fresh claim only if they are significantly different from material already considered and, taken with that material, create a realistic prospect of success before an immigration judge. The Secretary of State may begin with previous adverse credibility findings, but must assess the new material with the old and apply anxious scrutiny. The reviewing court applies ordinary Wednesbury principles and must not substitute its own assessment of the evidence. Poor, unexplained or internally inconsistent documents may properly be found incapable of creating a realistic prospect of success, particularly where the underlying account has already been rejected.

The claimant, a Pakistani national, sought judicial review of decisions dated 4 February and 10 April 2010 refusing to treat further submissions as a fresh asylum claim under paragraph 353 of the Immigration Rules. Her original asylum appeal had been dismissed after an immigration judge rejected her account of domestic abuse and found her supporting Pakistani documents unreliable. The further submissions relied on documents said to show that members of her husband’s family had attacked her father and brother, resulting in her brother’s death, and contended that state protection was unavailable. The central issue was whether the Secretary of State had properly applied the fresh-claim test and given the new material anxious scrutiny.

1. The claim was dismissed. The Secretary of State had accurately stated the two-stage test under paragraph 353: whether the further material was significantly different, and, taken with the material previously considered, whether it created a realistic prospect of success before an immigration judge.
2. The assessment required anxious scrutiny, but the court’s supervisory task was limited. The court had to ask whether the correct question was addressed and whether the decision was irrational in the Wednesbury sense. It was not entitled to substitute its own view of the weight of the evidence.
3. The Secretary of State was entitled to start from the previous comprehensive rejection of the claimant’s account. That did not make a fresh claim legally impossible, since genuinely new material might establish the truth of a previously disbelieved account. However, the new documents had to be assessed in context.
4. The documents relied upon were very poor copies, unexplained, incomplete and internally inconsistent. They did not clearly establish the identity or death of the claimant’s brother, and their dates conflicted with the alleged attack. Against the background of the earlier credibility findings and the previous warning about unverified documents, the Secretary of State was entitled to conclude that they had no sufficient probative value.
5. The decision also permissibly took account of the earlier finding that, if the original documents were accepted, the claimant could obtain protection from the Pakistani authorities. The application was therefore dismissed. The claimant was ordered to pay the Secretary of State’s costs on the standard basis. The judge noted that the claim should ordinarily have been brought in Scotland, where the claimant resided, but proceeded by agreement.

First-instance judicial review in the Administrative Court. The judgment records that the claimant’s original asylum appeal had been dismissed by an immigration judge on 1 December 2008 and that an application for permission to appeal had been refused by the Immigration Appeal Tribunal.