SN, R (on the application of) v Secretary of State for the Home Department

For a fresh claim, the Secretary of State must assess genuinely new and significantly different material together with the earlier material. The question is whether an Immigration Judge applying anxious scrutiny would have a realistic prospect of finding a real risk of persecution. The assessment is not confined to the Secretary of State’s own view. A claim is not clearly unfounded if that realistic prospect cannot be excluded. Failure to scrutinise material capable of affecting the assessment, including expert evidence and the claimant’s relevant background, is an error of law and prevents certification under section 94(2) of the Nationality, Immigration and Asylum Act 2002.

The claimant, a Congolese national, sought judicial review of the Secretary of State’s decision rejecting his fresh asylum and humanitarian-protection claim and certifying it as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002.

His earlier asylum proceedings had failed before the Secretary of State, the Immigration Tribunal, the Upper Tribunal and the Court of Appeal. Permission for this judicial review was eventually granted by the Court of Appeal after earlier refusals on paper and at an oral hearing. The central issue was whether the fresh material, considered with the old material and with anxious scrutiny, gave an Immigration Judge a realistic prospect of finding a real risk of persecution.

1. The claim for judicial review succeeded. The Secretary of State’s decision of 15 June 2013 was quashed.

2. Under the fresh-claim approach described in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, there must be genuinely new material significantly different from material previously considered. The material must then be assessed as a whole.

3. The relevant question was whether there was a realistic prospect that an Immigration Judge, applying anxious scrutiny, would conclude that the claimant faced a real risk of persecution on return. The Secretary of State had to consider both the old and new material. A failure to apply anxious scrutiny would render the decision irrational in law.

4. The court applied the country guidance in LM (Risks on Return Republic of Congo-Brazzaville CG 2008 UKIAT 00064, under which risk depended on the individual’s background and profile, including the extent of political involvement and the likelihood of coming to the authorities’ attention.

5. The Secretary of State had not fully considered the claimant’s role and status in the former regime. The expert commentary and the combined old and new material had not received the anxious scrutiny required. There was a realistic prospect that an Immigration Judge might reach a different conclusion. The claim was therefore not bound to fail, and the section 94(2) threshold was not met.

6. The matter required a fresh decision on all the material with all possible haste. The claimant was entitled to his costs, subject to detailed assessment if not agreed.

The judgment records that permission to apply for judicial review was eventually granted by the Court of Appeal after permission had been refused on paper by Sir Stanley Burnton, by Wilkie J in the Administrative Court, and at an oral hearing by His Honour Judge Langan QC.