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

Under paragraph 353 of the Immigration Rules, further submissions require a two-stage assessment: whether they should be accepted as a protection claim and, if rejected, whether they nevertheless constitute a fresh claim. The second question applies a modest threshold, requiring a realistic prospect of success when the new material is considered with the earlier evidence. The Secretary of State must use the previous tribunal findings as the baseline, consider material favourable to the claimant, and apply anxious scrutiny. Detention under the Detained Fast Track process may become unlawful when circumstances materially change, including after judicial review proceedings stay removal, if continued detention is no longer justified by the published policy and no separate lawful basis exists.

The claimant, a Pakistani national, sought judicial review of the refusal to treat further representations and a First Information Report as a fresh asylum claim. He also challenged his detention under the Detained Fast Track process from 21 November 2013 until his release on bail on 26 March 2014.

The Secretary of State rejected the fresh claim application on 2 March 2014. The claimant contended that the decision failed to engage with accepted factual findings, new evidence, expert evidence and the alleged risk from the Pakistani authorities and his wife's family. He also argued that his detention was unlawful, particularly after removal was stayed and judicial review proceedings were issued.

1. Fresh claim. The claim challenging the refusal of a fresh claim was dismissed. Paragraph 353 of the Immigration Rules required the Secretary of State first to consider the further submissions and then, if they were rejected, to ask whether they were significantly different from the material previously considered. The relevant threshold was modest, but intervention remained confined to orthodox public law errors, including failure to consider relevant matters, inadequate reasons, irrationality, asking the wrong question or failure to apply anxious scrutiny.
2. The previous First-tier Tribunal findings supplied the baseline for the assessment. Acceptance of the claimant's earlier account did not require the Secretary of State to accept every later assertion. The new material did not rationally undermine the two reasons for the earlier dismissal: the availability of state protection and the possibility of internal relocation without undue hardship.
3. The decision letter correctly distinguished the two First Information Reports and considered the expert evidence. The Country Guidance decision in KA and Others (domestic violence – risk on return) Pakistan CG [2010] UKUT 216 (IAC) provided relevant assistance concerning the nature of an FIR, police protection and honour crime. The Secretary of State was entitled to conclude that the further material did not create a realistic prospect of success.
4. Detention. The challenge succeeded in part. Before 3 March 2014 the claimant had an available remedy to seek removal from the Detained Fast Track process and no proper complaint about detention was established. Once judicial review was issued, however, the Secretary of State had to reconsider detention carefully in light of the changed circumstances. The continued reliance on processing the claim within Detained Fast Track timescales failed to take account of the stay on removal and the changed position. Detention from 3 March to 26 March 2014 was therefore unlawful. The court did not decide the Article 5 issue specifically.
5. The damages claim was transferred to the Queen's Bench Division for assessment. The claimant was ordered to pay half the defendant's costs, assessed at £3,304, subject to legal aid protection. The stay on removal was lifted.

The judgment was a first-instance judicial review. The claimant's asylum appeal had previously been dismissed by the First-tier Tribunal, and further appeal rights expired on 22 January 2014. The Administrative Court dismissed the fresh claim challenge but granted relief concerning subsequent detention.