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

In a fresh asylum claim, the Secretary of State must assess new material together with material previously considered and decide whether it creates a realistic prospect of success before an Immigration Judge. The assessment requires anxious scrutiny of the evidence as a whole, including expert evidence, credibility findings and relevant new information. Expert evidence is not determinative and must be weighed within the full evidential matrix. On judicial review, the court applies the conventional Wednesbury standard and must not substitute its own view of the likely outcome. A later decision which supersedes and reinforces an earlier decision forms part of the operative administrative decision and should be considered with it.

The claimant challenged the Secretary of State’s refusal to treat further representations as a fresh claim under paragraph 353 of the Immigration Rules. His earlier asylum claim had been rejected by an Immigration Judge following adverse credibility findings and conclusions about his nationality and origins. The further representations relied on expert reports challenging aspects of the language analysis evidence.

After permission had been granted in relation to the first refusal, information was obtained from the Netherlands and the Secretary of State issued a second decision reinforcing the first. The claimant declined to challenge the second decision. The central issue was whether the Secretary of State had lawfully concluded that the combined old and new material did not create a realistic prospect of success.

1. Outcome. The application for judicial review of the first decision was dismissed. The second decision, which was the extant operational decision, was not challenged and therefore stood. The claimant was ordered to pay the defendant’s costs, subject to the stated public-funding qualification.
2. Applicable test. Paragraph 353 of the Immigration Rules required consideration of whether the further submissions were significantly different and, taken with the earlier material, created a realistic prospect of success before an Immigration Judge. Under [2011] EWCA Civ. 193, the court’s role on judicial review was limited to asking whether the Secretary of State’s conclusion was Wednesbury unreasonable. The court was not entitled to substitute its own assessment of the likely asylum outcome.
3. Assessment of evidence. The Secretary of State was required to apply anxious scrutiny and assess the amalgam of old and new material. Expert reports formed part of the evidence as a whole. Their weight was case-specific, and they had to be considered alongside credibility findings, country information and the other available evidence. The language analysis was not treated as the sole basis for the earlier decision, and the expert reports did not address all the adverse findings, including the claimant’s ability to travel to Kenya and later discrepancies in his accounts to the Dutch authorities.
4. Operative decision. It would have been artificial to review the first decision in isolation after the Secretary of State had voluntarily reconsidered the matter and issued a second decision. The second decision built upon and reinforced the first. Both decisions applied the correct legal test and were lawfully reached. The Dutch information provided further support for the conclusions already reached.

First-instance judicial review proceedings in the Administrative Court. Permission had been granted in relation to the first refusal, but the claimant did not challenge the later decision of 10 February 2012. The claim concerning the first decision was dismissed.