Ahmad Tawakoli, R (on the application of) v The Secretary of State for the Home Department

Under paragraph 353 of the Immigration Rules, the Secretary of State may lawfully conclude that further submissions do not amount to a fresh claim where, considered with earlier material, they do not satisfy the applicable fresh-claim test. A decision-maker may attach little weight to brief, uncorroborated and subjective evidence of religious conversion where independent evidence from an expected source, such as church figures, is absent.

In assessing the legality of an expulsion decision under Article 3, the relevant risk is primarily assessed by reference to facts known or which ought to have been known when the decision was made. Later evidence may be relevant to a further decision, but does not by itself render the earlier decision unlawful.

The applicant sought judicial review of the Secretary of State’s decisions of 22 July 2013 that his further representations did not amount to a fresh asylum claim. His earlier asylum appeal had been dismissed and he had become appeal-rights exhausted in July 2010.

Shortly before removal to Afghanistan, he relied on an asserted conversion from Islam to Christianity, his relationship with a Romanian national, and his family and private life in the United Kingdom. He was removed on 23 July 2013. He later supplied evidence of alleged difficulties in Afghanistan, including arrest and detention said to be connected with his claimed conversion.

The central issues were whether the contemporaneous material met the fresh-claim test and whether the later evidence affected the legality of the decisions already made.

1. The judicial-review claim was dismissed. It was open to the Secretary of State to conclude that the further submissions, taken with the previously considered material, did not amount to a fresh claim under paragraph 353 of the Immigration Rules.

2. The Secretary of State had sufficiently recognised the relevant country background. Her decision letter referred to the concession that a genuine Christian convert could face persecution or Article 3 harm in Afghanistan, and to NM (Christian converts) Afghanistan CG [2009] UKAIT 00045. The decisive issue was whether this applicant had genuinely converted.

3. Although the first decision letter had deficiencies, the later letter of the same date addressed all the statements submitted. It was lawful to treat their comments as uncorroborated, self-serving and subjective. The evidence concerning the claimed conversion was brief. There was no substantiation from church figures or another expected independent source. The earlier immigration judge’s broadly favourable credibility findings did not make the Secretary of State’s assessment unlawful, since the new material had not previously been considered.

4. The Tribunal applied the fresh-claim approach referred to in WM (DRC) v SSHD & SSHD v AR (Afghanistan) [2006] EWCA Civ 1495. On the evidence available on 22 July 2013, the Secretary of State could rationally find that the test was not met.

5. The later evidence from Afghanistan did not invalidate the earlier decisions. Applying Saadi v Italy [2009] 49 EHRR 30, Article 3 risk was to be assessed primarily by reference to facts known or which ought to have been known at the time of expulsion. If later evidence required a further decision, it could be considered then; it did not establish public-law error in the decisions of 22 July 2013.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State’s fresh-claim decisions of 22 July 2013 was dismissed.
• Immigration Judge: The applicant’s earlier appeal against refusal of further leave to remain was dismissed. He became appeal-rights exhausted on 12 July 2010.