ST v Secretary of State for Home Department

Under paragraph 353 of the Immigration Rules, a fresh claim decision requires a structured, two-stage assessment. The decision-maker must first reject or accept the further claim and then decide whether it is significantly different from the material previously considered and, taken with that material, has a realistic prospect of success before the First-tier Tribunal. The decision-maker must apply anxious scrutiny, consider the case in the round, and give separate, adequate reasons. Previous adverse credibility findings may be considered, but must themselves be scrutinised, especially where the initial claim was made by a vulnerable person and was never tested on appeal. The realistic-prospect assessment is modest and concerns the decision-maker’s own evaluation of the likely outcome of a hypothetical appeal; the decision-maker does not simply stand in the judge’s shoes. Judicial review remains governed by conventional Wednesbury principles.

ST challenged two decisions of the Secretary of State under paragraph 353 of the Immigration Rules. The decisions, dated 10 January 2011 and 28 January 2011, rejected further representations based respectively on alleged domestic violence and related protection risks, and on ST’s claimed conversion from Sunni to Shi’a Islam and sur place preaching activities.

ST had made an earlier asylum claim in 2005, which was rejected without an appeal. She contended that the earlier credibility findings were unreliable and that the later decision-maker had failed to consider new evidence, country information, her vulnerability, and the possibility of success before an immigration judge. The central issues were whether the paragraph 353 tests had been correctly applied and whether the two decisions were amenable to judicial review.

The court quashed both decisions and required the Secretary of State to decide whether to recognise the representations as fresh claims or to reconsider the decisions.

1. Paragraph 353 framework. The decision-maker must answer five successive questions: whether the further matter is an asylum or human rights claim; whether the earlier claim was rejected or withdrawn with no pending appeal; whether the further claim is accepted or rejected; whether the further material is significantly different from what was previously considered; and, if so, whether the material taken together creates a realistic prospect of success.
2. Realistic prospect of success. The threshold is modest. The decision-maker must assess the likely outcome of an appeal before the First-tier Tribunal, recognising that the tribunal will conduct a fresh hearing, hear oral evidence and cross-examination, and may receive further evidence. The decision-maker must make the decision in his or her own capacity, while taking account of the nature and advantages of the hypothetical appeal.
3. Anxious scrutiny and credibility. The decision-maker must consider every factor capable of assisting the applicant and must evaluate the claim in the round. Previous adverse credibility findings may be relied upon, but only after careful scrutiny of their reasoning and fairness. Particular care is required for claims involving domestic or sexual violence, forced marriage, vulnerability, language difficulties, or a substantially different cultural background. A failure to appeal does not justify adverse inferences where there is a satisfactory explanation.
4. Separate reasons and judicial review. The rejection decision and the fresh-claim decision must be separate and reasoned. The reasons must show that the correct questions were asked and that anxious scrutiny was applied. The Administrative Court must apply conventional Wednesbury review and must not substitute its own view of the prospects of success.
5. The first decision unlawfully relied on an erroneous section 8 credibility finding and failed to assess the earlier credibility findings with anxious scrutiny. The second decision inadequately considered corroborative evidence, the stated date of conversion, the sur place nature of the claim, and the interaction of the relevant risk factors. Both decisions were Wednesbury unreasonable.