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

Under paragraph 353 of the Immigration Rules, further submissions must first be materially different from material previously considered. If they are, the decision-maker must then assess whether, taken with the earlier material, they create a realistic prospect of success before an Immigration Judge. The assessment requires anxious scrutiny, but judicial review remains confined to legality and irrationality. The decision-maker may assess credibility, delay, documentary reliability and the applicant’s likely profile on return. A decision must be considered in its factual and procedural context, particularly where submissions are made shortly before removal. It is not appropriate to challenge such a decision by picking over minor points in the decision letter when the reasoning, read as a whole, addresses the correct questions.

The claimant, a national of country A, had unsuccessfully claimed asylum and exhausted his appeal rights. Shortly before his removal, he made further submissions asserting for the first time that he had become an active member of Organisation 1 in the United Kingdom and would be at risk on return. The Secretary of State rejected the submissions under paragraph 353 of the Immigration Rules, concluding that they would not give rise to a realistic prospect of success before an Immigration Judge.

The claimant sought judicial review, alleging that the Secretary of State had failed to apply the correct test and anxious scrutiny. The preliminary issue was whether the refusal to treat the representations as a fresh claim was legally erroneous.

1. The claim was dismissed. The Secretary of State did not err in law in refusing to treat the representations of 25 October 2010 as a fresh claim.
2. Paragraph 353 required a two-stage assessment. The Secretary of State had to decide whether the further material was significantly different because it had not previously been considered. Only if that threshold was met was it necessary to decide whether the new and old material together created a realistic prospect of success before an Immigration Judge. The assessment had to be informed by anxious scrutiny: WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495.
3. On judicial review, the court had to ask whether the Secretary of State had asked the correct question and had applied anxious scrutiny. The court could intervene on a Wednesbury basis, but the claimant could not convert the review into a detailed re-evaluation of the evidence.
4. The Secretary of State was entitled to rely on the claimant’s previous adverse credibility findings, his history of dishonesty, his failure to raise Organisation 1 membership despite repeated opportunities, and the limited qualification of the expert evidence. These matters were relevant both to the genuineness of the supporting documents and to the realistic prospect of success.
5. Even assuming that the documents were genuine and that the claimant had been a member since February 2008, the Secretary of State was entitled to conclude, by reference to Country Guidance Case 1 and High Court Case 1, that the claimant’s activities did not disclose a sufficient profile to attract the attention of the authorities in country A. The decision letter was to be read in the round and in the context of the short time available before removal, rather than examined by minute criticism.