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

Further representations amount to a fresh claim only where they are significantly different from material previously considered and, taken with that material, create a realistic prospect of success before an independent tribunal. Earlier factual findings are not necessarily binding on a later tribunal, but new material must realistically undermine the earlier findings. In removal cases based on suicide risk, an Article 3 claim is subject to a high threshold. The assessment requires attention to the seriousness of the anticipated treatment, causation, the basis of the fear, and available mechanisms for reducing the risk. Paragraph 353B operates as a narrow exceptional safety valve. The decision maker must apply the correct legal tests and give adequate reasons, but need not accept a fresh claim where the evidence is old, generalised or medically insufficient.

The claimant, a Ugandan national, challenged decisions by the Secretary of State refusing to treat representations made in November 2012 and September 2013 as fresh asylum or human rights claims under paragraph 353 of the Immigration Rules. She also challenged the failure to exercise the discretion under paragraph 353B and referred to removal directions.

Her case relied principally on alleged past abuse, psychiatric evidence, suicidal ideation, self-harm risk, and the consequences of removal under Articles 3 and 8 of the Convention. An earlier Immigration Judge had rejected the core account as bogus. The central issues were whether the later material created a realistic prospect of success before a new tribunal and whether the Secretary of State had erred in considering exceptional circumstances.

1. Claim dismissed. The Secretary of State applied the correct test under paragraph 353 of the Immigration Rules. The later material did not create a realistic prospect that a new Immigration Judge would undermine the earlier core credibility findings.
2. Earlier findings by one Immigration Judge are not necessarily binding on a later Immigration Judge. However, a claimant relying on vulnerability at the earlier hearing must identify specific areas in which that vulnerability may have caused prejudice. No such deficiencies were identified.
3. The medical and supporting evidence did not establish a realistic prospect of success under Article 3. The applicable threshold was high. A suicide risk can in principle engage Article 3, but the assessment requires a real risk of sufficiently serious treatment, a causal link with removal, and consideration of the objective basis or independent foundation of the fear and the effectiveness of mechanisms available in the removing or receiving state.
4. The evidence also did not create a realistic prospect of success under Article 8. The Secretary of State had engaged with the evidence and was entitled to conclude that it did not meet the required threshold.
5. Paragraph 353B was correctly considered. It provides a narrow discretion to refrain from removal in exceptional circumstances. The Secretary of State gave reasons for declining to exercise it, and no public law error was established.
6. Post-decision evidence could not establish that the Secretary of State had acted unlawfully when making the decisions under challenge. The challenge to the removal directions also failed, being both outside the permission granted and academic.