Chikasha, R (On the Application Of) v Secretary of State for the Home Department

A fresh claim under paragraph 353 of the Immigration Rules requires submissions which are significantly different from material previously considered and which, taken with that material, create a realistic prospect of success before an Immigration Judge.

The Secretary of State must assess the substance of the alleged risk, even where an asylum seeker’s conduct appears deliberate or contrived. The relevant question is the risk perceived in the country of return, not merely the genuineness of the conduct in the United Kingdom. Judicial review applies the traditional Wednesbury standard, subject to anxious scrutiny. The application failed because the Secretary of State had addressed the relevant issues and rationally concluded that the new material did not establish a sufficient connection between the claimant’s activities and any real risk of persecution.

The claimant, a Zimbabwean national, sought judicial review of the Secretary of State’s decision that further submissions concerning his political activities in the United Kingdom did not amount to a fresh claim under paragraph 353 of the Immigration Rules.

His earlier asylum claim had been rejected and his appeal rights exhausted. He relied principally on an increased role in the Coventry branch of the Movement for Democratic Change, arguing that this created an enhanced risk on return. The Secretary of State accepted that some earlier factual errors had been made but concluded that the additional material did not create a realistic prospect of success. The central issues were the proper approach to paragraph 353 and whether the decision was irrational.

1. Standard of review. The court’s task was to determine, on the traditional Wednesbury basis, whether the Secretary of State’s decision was reasonable. In this context the court applied anxious scrutiny because of the serious consequences for the claimant. The approach was consistent with MN (Tanzania) [2011] EWCA Civ 193.
2. Fresh claim test. Paragraph 353 required the further submissions to be significantly different from material previously considered. They had to contain material not previously considered and, taken together with the earlier material, create a realistic prospect that an Immigration Judge would allow the claim, notwithstanding the Secretary of State’s rejection of the submissions.
3. Deliberate conduct. The Secretary of State was entitled to regard the claimant’s increased political activity with scepticism. That did not, however, remove the obligation to assess the objective risk on return. The decision letters showed that the Secretary of State had considered the alleged risk on its merits, including the claimant’s limited profile, the absence of evidence that the Zimbabwean authorities would target him, and the lack of a sufficient nexus between his Coventry activities and persecution in Zimbabwe. The approach was consistent with the principle recognised in EM (Zimbabwe) v SSHD [2009] EWCA Civ 1294, that the perception abroad may matter even where conduct is disingenuous.
4. The First-tier Tribunal had dealt with the claimant’s sur place activities briefly, but had not overlooked the issue. In any event, the Secretary of State’s later assessment was independently rational.
5. The application for judicial review did not succeed. The Secretary of State was entitled to conclude that the further material was not fresh in the legal sense. The defendant was awarded costs, subject to assessment.

The judgment was a first-instance judicial review decision. The claimant’s earlier asylum claim had been rejected by the First-tier Tribunal, and permission to appeal had subsequently been refused. The Secretary of State later reconsidered the further submissions but maintained that they did not amount to a fresh claim.