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

Under Paragraph 353 of the Immigration Rules, further submissions amount to a fresh claim only if, considered with the material previously considered, they create a realistic prospect of success before a First-tier Tribunal Judge. Judicial review asks whether the Secretary of State’s contrary assessment was irrational or Wednesbury unreasonable, applying anxious scrutiny.

A prior adverse credibility finding remains important background. Further medical evidence confirming PTSD does not by itself require a different conclusion where the earlier tribunal accepted the condition but rejected its alleged cause after assessing all the evidence. Country guidance requires an individual assessment of sur place political activity, publicity, profile and identification risk. Iranian Arab ethnicity enhances other risk factors but does not alone establish a risk of persecution.

The Iranian claimant sought judicial review of the Secretary of State’s decision of 4 November 2011 not to treat further submissions as a fresh claim under Paragraph 353 of the Immigration Rules.

His earlier asylum appeal had been dismissed following extensive adverse credibility findings concerning his alleged arrest, detention, torture and political activities. His later material included a purported Iranian newsletter, further medical evidence of PTSD, evidence of an alleged arrest of his brother, a DSPA letter, and evidence of attendance at a demonstration in the United Kingdom.

The central issue was whether that material, together with the evidence already considered, created a realistic prospect that a First-tier Tribunal Judge would allow a protection appeal.

1. The judicial-review application was dismissed. The Secretary of State asked the correct question under Paragraph 353 of the Immigration Rules, considered the material individually and cumulatively, and applied anxious scrutiny. Her conclusion that there was no realistic prospect of success before a First-tier Tribunal Judge was rational ([2012] UKUT 367 (IAC), [41]).

2. The earlier tribunal’s adverse credibility findings were an important and relevant starting point for any new appeal. That tribunal had considered the medical evidence, accepted that the claimant had PTSD and scars, but rejected the claimed cause after assessing the evidence in the round. It was for the claimant to establish his protection claim; the earlier judge was not required to identify alternative causes for the injuries ([32]–[33]).

3. The later medical report and letter did not materially add to the earlier medical evidence. They maintained the PTSD diagnosis but did not undermine the reasons for the adverse credibility findings or create a realistic prospect of a different conclusion. R (on the application of AM) v Secretary of State for the Home Department was distinguishable because the earlier tribunal here had the relevant medical report and assessed it with the other evidence ([33]–[34]).

4. The newsletter was inadequately authenticated and, more significantly, was inconsistent with the claimant’s account. The alleged arrest of his brother was unsubstantiated. Neither item had more than minimal significance ([35]–[36]).

5. Applying the country guidance in BA (Iran) CG and SA (Iran) CG, the claimant’s single demonstration, lack of political activity or profile, and absence of evidence of publicity or identification by the Iranian authorities did not establish a real risk. Iranian Arab ethnicity could enhance other risk factors, but was insufficient on its own ([38]–[40]).

• Upper Tribunal (Immigration and Asylum Chamber): judicial-review application dismissed. The challenge concerned the Secretary of State’s refusal to treat further submissions as a fresh claim.
• First-tier Tribunal: the claimant’s earlier asylum appeal was dismissed on 17 December 2010. Permission to appeal was subsequently refused by the First-tier Tribunal and the Upper Tribunal.