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

Under rule 353 of the Immigration Rules, further representations constitute a fresh claim where they contain material not previously considered and, taken with the earlier material, create a realistic prospect of success. The prospect must be more than fanciful, but need not establish that the claim will ultimately succeed.

The success of a related claimant’s asylum claim is not, by itself, sufficient. However, evidence from that claim may materially overlap with the original claim, particularly where it was previously unavailable, and may require reconsideration as a fresh claim.

The claimant, a Sri Lankan national, challenged refusals by the Secretary of State to treat further representations as a fresh claim. Her original asylum claim had been rejected after an adverse credibility decision. Subsequently, her son’s asylum appeal succeeded, based on evidence concerning overlapping events, including detention and alleged LTTE-related persecution.

The claimant relied additionally on new evidence concerning risk on return, mental health, and private and family life. Permission to apply for judicial review was granted on renewal. The central issue was whether the new material satisfied rule 353 of the Immigration Rules.

1. Claim succeeded. The Secretary of State’s decisions refusing to treat the further representations as a fresh claim were quashed. The Secretary of State was directed to consider the matter as a fresh claim. Costs were awarded to the claimant, subject to assessment if not agreed.
2. Rule 353 requires two questions. First, whether the further representations are significantly different because their content has not previously been considered. Secondly, whether, taken together with the previously considered material, they create a realistic prospect of success notwithstanding the earlier rejection.
3. The realistic prospect test is modest. It requires a prospect that is more than fanciful. The court must review the Secretary of State’s decision rather than determine the asylum claim itself.
4. The son’s successful asylum claim did not, of itself, establish a fresh claim for the claimant. The relevant question was whether the evidence underlying that decision materially overlapped with the claimant’s case. Some aspects of the claimant’s original evidence remained unaffected, but other matters overlapped with the son’s evidence and findings.
5. The son had been unavailable when the claimant’s case was previously considered because she did not know where he was and he was in detention. The later evidence therefore could not fairly be treated as merely repetitive. In an asylum case, it could not be said that the combined material presented no more than a fanciful prospect of success. The Secretary of State should therefore have reconsidered the claim.
6. The court declined to determine the remaining grounds concerning risk on return, private and family life, and mental health. The mental-health material appeared insufficient in the absence of psychiatric evidence.

Permission to apply for judicial review was initially refused on the papers but granted on renewal by Lang J. No appellate decision is stated. The Administrative Court allowed the judicial review claim and directed reconsideration as a fresh claim.