Wilfred Zonzi, R (on the application of) v The Secretary of State for the Department

Under paragraph 353 of the Immigration Rules, the question is whether there is a realistic prospect that a future tribunal, applying anxious scrutiny, would allow the protection claim. The Secretary of State must assess fresh material holistically against the earlier findings and all the evidence.

Fresh documents need not be intrinsically incredible before they may be found insufficiently reliable. Conversely, an applicant’s previous lack of credibility is not determinative. Anxious scrutiny does not require a decision letter to address every item or every detail expressly, provided the material has in substance been considered.

The applicant, a citizen of Congo (Brazzaville), claimed asylum after alleging detention and ill-treatment arising from events involving supporters of Pastor N’tumi. An Immigration Judge dismissed his appeal in October 2008, rejecting the core account. Following further representations and documents said to emanate from Congo, the Secretary of State decided that the representations did not amount to a fresh asylum claim.

The applicant sought judicial review of decisions made in April and May 2012. He alleged legal error in the treatment of the fresh documents, inadequate anxious scrutiny, failure to reconsider earlier credibility findings properly, insufficient consideration of medical evidence and breach of an undertaking given in earlier judicial review proceedings.

1. The application for judicial review was refused. The applicable inquiry under paragraph 353 of the Immigration Rules was whether there was a realistic prospect that a future judge, applying anxious scrutiny, would find a real risk of persecution. The Secretary of State had asked that question and had applied anxious scrutiny.

2. The applicant’s reliance on Rahimi v Secretary of State for the Home Department [2005] EWHC 2838 (Admin) overstated that authority. It prevents the Secretary of State’s personal view of fresh evidence from being determinative. It does not require fresh third-party documentation to create a fresh claim unless it is intrinsically incredible or incapable of belief.

3. The proper approach was to assess the reliability and significance of the material in the context of all the evidence, including the earlier judicial credibility findings. Material may be insufficiently reliable to create a realistic prospect of success even though a tribunal could rationally regard it as reliable. The respondent had considered the documents, their provenance, timing and the prior findings in that way.

4. The earlier Immigration Judge had rejected the applicant’s core account in its entirety. The respondent therefore did not misunderstand the earlier determination. Nor had she treated it as conclusive: her letters specifically considered the later documents, witness statement and other evidence.

5. Minor translation errors in an earlier decision letter were immaterial in the cumulative assessment. The respondent was not required to give reasons for every individual detail of the further representations. The rule 35 report recorded only faded scars and did not provide medical evidence connecting them to torture or establish a realistic prospect of protection succeeding.

6. The undertaking recorded in the earlier High Court order required a further decision on the February 2012 representations before detention or removal. The letter of 13 April 2012 complied with that obligation.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review application refused.
• Immigration Judge: The applicant’s asylum appeal was dismissed in October 2008. Permission to appeal was unsuccessfully sought, and he became appeal rights exhausted in March 2009.
• High Court: Earlier judicial review proceedings were withdrawn in March 2012 after the Secretary of State agreed not to detain or remove the applicant until seven days after serving a further decision on the representations of 17 February 2012.