KS (R on the application of) v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

A decision that further submissions do not amount to a fresh claim is reviewable only on Wednesbury grounds. The decision-maker must nevertheless ask whether there is a realistic prospect that an independent tribunal, applying anxious scrutiny, would find a real risk on return. The decision-maker must also apply anxious scrutiny personally.

An assessment may be irrational where it rests on broad assurances that returnees have suffered no problems, without properly addressing evidence of reported ill-treatment, the possibility that information volunteered during re-documentation may reach the home authorities, and findings that the applicant was partially credible. The decision-maker’s adverse view of credibility is only the starting point when assessing the realistic prospect of success.

The applicant, a Sri Lankan national, sought judicial review of the Secretary of State’s refusal to treat further representations as a fresh claim and of the continuing decision to remove him to Sri Lanka.

His earlier asylum appeal had been dismissed. The First-tier Tribunal had accepted parts of his account, including limited assistance to an LTTE supporter and questioning and beating by police, but found that he was not of continuing adverse interest to the Sri Lankan authorities.

The further representations relied principally on what the applicant said he told Sri Lankan High Commission officials during an emergency travel-document interview, and on evidence concerning alleged ill-treatment of some returnees. The central issue was whether the Secretary of State had applied anxious scrutiny when deciding that the new material gave no realistic prospect of success before the First-tier Tribunal.

1. The application for judicial review was granted. The Upper Tribunal quashed the decision that the applicant’s further representations did not amount to a fresh claim.

2. Under HC 395, paragraph 353, the Secretary of State had to ask whether the new submissions, taken with the previously considered material, created a realistic prospect that an immigration judge applying anxious scrutiny would find a real risk on return. Following WM (DRC) v Secretary of State [2006] EWCA Civ 1495, judicial review was limited to Wednesbury unreasonableness, but required both the correct question and anxious scrutiny by the Secretary of State.

3. The Secretary of State had stated the correct test. It was open to her to reject the applicant’s account of the High Commission interview and to take account of his delay in claiming asylum and earlier unsupported assertions. Her assessment of the merits was, however, only a starting point for deciding whether an independent tribunal might realistically accept the evidence.

4. The assessment lacked sufficient anxious scrutiny. Standard re-documentation forms did not establish that officials could not ask additional questions or report volunteered information to authorities in Sri Lanka. Broad assertions that no returnees had encountered problems also failed to confront reports of ill-treatment and the Freedom of Information data showing that some returnees had later been granted refugee status after alleging torture or other prohibited treatment.

5. The Secretary of State also failed to acknowledge the earlier Tribunal’s findings that the applicant was partially credible. Those combined omissions meant that the evidence did not answer the concerns identified when permission was granted and did not rationally support the conclusion that there was no realistic prospect of success. The respondent was ordered to pay the applicant’s costs, subject to assessment if not agreed.

• Upper Tribunal (Immigration and Asylum Chamber): Granted judicial review and quashed the Secretary of State’s decision that the further representations did not amount to a fresh claim.

• First-tier Tribunal: Dismissed the applicant’s earlier asylum appeal after finding that he was not of continuing adverse interest to the Sri Lankan authorities.