Hammed Mohammed Alhammadi, R (on the application of) v The Secretary of State for the Home Department

Under HC 395, paragraph 353, the Secretary of State must decide whether further submissions create a realistic prospect that an immigration judge, applying anxious scrutiny, would reach a different conclusion. The Secretary of State may begin with her own assessment and earlier credibility findings, but must then stand back and assess the new and previously considered material for that distinct purpose.

Medical evidence must be considered with the evidence as a whole. It may nevertheless be given limited weight where its conclusions depend materially on an account already found unreliable, or where there are sound reasons to question the diagnosis or its factual basis. A factual error in an earlier determination does not establish a fresh claim unless it could materially affect the outcome.

The applicant sought judicial review of the Secretary of State’s decision of 22 June 2012 that further submissions, supported by documents and medical evidence, did not amount to a fresh asylum claim under paragraph 353 of HC 395.

His earlier asylum appeal had been dismissed after the First-tier Tribunal rejected his account, found him to be a Yemeni national, and made strongly adverse credibility findings. The further submissions included evidence said to support his claimed residence in the United Arab Emirates and a medico-legal report diagnosing physical injuries and post-traumatic stress disorder.

The central issue was whether the Secretary of State had lawfully assessed the new material by reference to the realistic prospect of success before a hypothetical immigration judge.

1. The judicial-review claim was dismissed. The Secretary of State had applied the correct paragraph 353 test and her conclusion was within the range of reasonable decisions open to her.

2. The governing question, drawn from WM (DRC) v Secretary of State [2006] EWCA Civ 1495, was not whether the Secretary of State considered the new claim meritorious. It was whether there was a realistic prospect that an immigration judge, applying anxious scrutiny, would find a real risk on return. The Secretary of State could use her own view as a starting point, but had to assess the distinct hypothetical judicial outcome.

3. A paragraph 353 decision must be made separately from the original refusal. The decision-maker must stand back from rejecting the further submissions and reconsider the new and previously considered material for the fresh-claim question, giving adequate reasons. On a fair reading of the refusal letter, the Secretary of State had done so.

4. The Secretary of State had lawfully considered the medical evidence in the round. She was entitled to take account of the absence of psychiatric qualifications when assessing the PTSD diagnosis, and of the fact that the diagnosis and other conclusions depended substantially on the applicant’s account. She had also identified evidential matters capable of undermining the proposed causes of the back injury and anal fissure. The Tribunal rejected the contention that the medical evidence had been treated merely as an add-on after credibility had already been decided.

5. The earlier First-tier Tribunal had made an error concerning the date of a visit to the United States. That error was not material: the remaining adverse credibility factors were sufficiently strong that it would not have affected the earlier outcome or created a realistic prospect of success.

6. The applicant was ordered to pay the respondent’s costs, subject to assessment of his ability to pay under section 11(1) of the Access to Justice Act 1999.

• Upper Tribunal (Immigration and Asylum Chamber): judicial-review claim dismissed; the Secretary of State’s paragraph 353 decision was upheld.
• First-tier Tribunal: the applicant’s earlier asylum, humanitarian-protection and human-rights appeal was dismissed. No application for permission to appeal that determination was made.
• Secretary of State: on 22 June 2012, further submissions were held not to amount to a fresh claim under paragraph 353 of HC 395.