Ashraf v Secretary of State for the Home Department

Further representations constitute a fresh claim only where, taken with previously considered material, they create a realistic prospect of success before an Immigration Judge. The Secretary of State must consider the material with anxious scrutiny, but is entitled to reject medical evidence that depends substantially on an account previously found incredible, particularly where independent credibility problems remain.

Detention remains lawful where the evidence does not establish exceptional circumstances under the detention policy, including independent evidence of torture or serious mental illness that cannot be managed in detention. Immigration judicial review proceedings should not be brought in the Administrative Court by adding an unmeritorious detention ground to a challenge properly within the Upper Tribunal’s jurisdiction. Such conduct may constitute an abuse of process and may attract costs consequences.

The claimant, a Pakistani national whose asylum claim and appeal had failed, challenged the Secretary of State’s refusal to treat further representations as a fresh claim. The representations relied substantially on a new medico-legal report concerning alleged torture, PTSD, depression, suicide risk and fitness to fly.

He also alleged that his continuing detention was unlawful because the evidence indicated that he was a torture victim and because of his mental health. The claim was issued in the Administrative Court after the transfer of much immigration judicial review work to the Upper Tribunal. The central issues were whether the Secretary of State had lawfully assessed the further representations, whether detention was unlawful, and whether the proceedings had been brought in the proper forum.

1. Fresh claim. Permission was refused. The Secretary of State’s letter of 25 November 2013 carefully considered the new medical report, the claimant’s PTSD and depression, the inconsistencies between his accounts, and the earlier adverse credibility findings. It was open to her to conclude that the further submissions did not create a realistic prospect of success before an Immigration Judge, applying anxious scrutiny and the established test in R (on the application of WM(DRC)) v Secretary of State for the Home Department [2006] EWCA Civ 1495, R (TK) v Secretary of State for the Home Department [2010] EWCA Civ 1550 and MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193.
2. Medical evidence. A medical report may describe observed conditions and assess consistency, but it does not generally determine credibility. Where the report accepts a rejected account and does not independently support it, its evidential weight may be substantially reduced. The claimant’s credibility problems extended beyond inconsistent accounts of torture, so the report did not materially alter the assessment.
3. Detention. Ongoing detention had to remain reasonable and accord with law and policy: R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245. The evidence did not establish exceptional circumstances under chapter 55.10 of the Enforcement Guidance and Instructions. Neither the Rule 35 report, the later incident requiring hospital attendance, nor the new medical report justified release.
4. Forum and abuse of process. A challenge to removal directions ordinarily belonged in the Upper Tribunal under the Lord Chief Justice’s Direction. Adding an unmeritorious detention ground to keep the case in the Administrative Court could constitute an abuse of process. The circumstances of the late medical report meant that this case was not treated as abusive, although the detention ground lacked substantive merit.
5. The stay on removal was lifted. Any further application was no bar to removal. The claimant was ordered to pay the costs of the Acknowledgment of Service.