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

For a fresh asylum claim under paragraph 353 of the Immigration Rules, the decision-maker must ask whether the further submissions are significantly different and whether, taken with the earlier material, they create a realistic prospect of success before an adjudicator applying anxious scrutiny. Judicial review remains governed by ordinary Wednesbury principles, although the gravity of possible persecution requires careful examination. The court must distinguish between asking the correct question and reaching an answer so absurd that it falls outside the decision-maker’s powers. New evidence bearing on an earlier adverse credibility finding may reasonably be viewed with the greatest circumspection. A conclusion that it does not create a realistic prospect of success will not be unlawful merely because it partially improves the claimant’s credibility.

The claimant, an Iranian failed asylum seeker, sought judicial review of the Secretary of State’s refusal to treat further submissions as a fresh asylum claim under paragraph 353 of the Immigration Rules. The submissions included translations of documents previously unavailable to the immigration judge and material said to support the claimant’s authorship of them.

He alleged that the Secretary of State had reasoned circularly by relying on the earlier adverse credibility findings, and that procedural unfairness had occurred during the original asylum proceedings. A preliminary issue also arose from the Secretary of State’s substantial delay in filing detailed grounds of defence.

1. Procedural issue. The court declined to strike out the Secretary of State’s detailed grounds under CPR 3.4(2)(c). The approach in Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 concerned relief from sanctions under CPR 3.9, and the public interest in securing the lawful exercise of public power made it inappropriate to determine the judicial review on an artificial basis. The delay was nevertheless inordinate and unexplained (paras [2]-[7]).
2. Applicable framework. Under paragraph 353, the Secretary of State had to ask whether the further submissions were significantly different because they had not previously been considered and, taken with the earlier material, created a realistic prospect of success. Following WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, the relevant question was whether an adjudicator applying anxious scrutiny might think that the claimant faced a real risk of persecution. The court also had to ask whether the Secretary of State’s negative answer was so absurd that no sensible decision-maker could regard it as lawful (paras [13]-[18]).
3. Application. The decision letters showed that the Secretary of State had asked the correct question and had considered the material with appropriate care. The new translations and supporting letter went some way towards repairing the earlier credibility damage, but did not fully restore credibility. The Secretary of State could reasonably anticipate that a hypothetical adjudicator would treat facts not previously put forward with the greatest circumspection, applying Devaseelan v Secretary of State for the Home Department [2002] UKIAT 000702, para 40(4). The conclusion that there was no realistic prospect of success was therefore not Wednesbury unreasonable (paras [26]-[31]).
4. Procedural impropriety and outcome. The confusion concerning translation did not establish that the immigration judge had misled the claimant, that the original proceedings were unfair, or that the Secretary of State’s decision was unlawful. The application for judicial review was dismissed (paras [28], [32]).