A v Secretary of State for the Home Department

On judicial review of a decision under paragraph 353 of the Immigration Rules, the court applies Wednesbury principles and does not decide for itself whether further submissions disclose a realistic prospect of success. The decision-maker must apply anxious scrutiny and show that factors favouring the claimant have been considered. Paragraph 353 imposes a modest threshold. Once the claimant identifies material that has not previously been considered, the decision-maker must assess the new and old material together. Later country evidence does not necessarily create a fresh claim where the claimant’s established risk profile remains low and the new evidence, properly understood, does not materially increase the risk.

The claimant, a Sri Lankan Tamil whose asylum claim had been refused in 2002 and whose appeal rights were exhausted in 2003, challenged decisions refusing to treat further submissions as a fresh claim under paragraph 353 of the Immigration Rules. He relied on post-2003 developments in Sri Lanka and country guidance concerning detention records, suspected LTTE involvement, scarring and return from the United Kingdom.

The question was whether the Secretary of State had lawfully concluded that the further submissions did not create a realistic prospect of success on a renewed asylum or human-rights claim.

1. The claim for judicial review was dismissed. The court’s task was to review the Secretary of State’s decision on Wednesbury principles, not to determine afresh whether the claimant satisfied the realistic-prospect test. A decision not reached with anxious scrutiny would be irrational.
2. Paragraph 353 imposes a modest test. The claimant bears the burden of identifying something new. The Secretary of State must then consider the new material together with the material previously considered. Anxious scrutiny requires the reasoning to show that every factor which might favour the claimant was properly taken into account, with the benefit of any realistic doubt given to the claimant.
3. The claimant’s original factual profile remained decisive. He was not an LTTE member, had provided only low-level assistance under pressure, had been detained by the army, had been released after a bribe, had not been charged, and had not been shown to be on a wanted list. The material in TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 indicated that accurate records were increasingly likely to identify levels of security risk and that persons of no real interest were less likely to be detained.
4. The reasoning in NA v United Kingdom [2008] ECHR 616; (2009) 48 EHRR 15 concerned a materially different profile, including repeated detention, photographing, fingerprinting and a documented arrest. MP (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 362 was likewise distinguishable because the claimant there had been an LTTE member and it was highly likely that his detention had been recorded.
5. Although it would have been preferable for the decision letters expressly to mention TK (Tamils – LP updated) Sri Lanka CG, their reasoning, read as a whole, engaged with the claimant’s risk profile. The later material did not rationally show that he faced a greater risk on return than had been found in the original appeal. The further submissions therefore did not amount to a fresh claim.

The judgment describes an earlier asylum refusal by the Secretary of State in 2002, an adjudicator’s dismissal of the claimant’s appeal in 2003, and exhaustion of appeal rights by 28 April 2003. The present proceedings were a first-instance judicial review in the Administrative Court.