AT (Afghanistan) v Secretary of State for the Home Department

When deciding whether further representations amount to a fresh claim, the Secretary of State must apply the real-prospect test: whether, taken with the existing material, the new evidence gives rise to a real chance that an immigration tribunal would accept it and allow the appeal. The question is not whether the Secretary of State personally accepts the account. Supporting statements must be considered. A decision may be unlawful if the Secretary of State asks whether the evidence proves the claim rather than whether a tribunal might accept it. Permission to appeal was granted on that ground only.

An Afghan national whose earlier account had been accepted as essentially credible made further asylum representations based on an alleged conversion to Christianity. The Secretary of State rejected them as insufficient to constitute a fresh claim and removed him to Afghanistan. The Upper Tribunal dismissed his judicial-review challenge, holding that the Secretary of State’s two letters should be read together, that the fresh-claim test had been applied, and that subsequent ill-treatment did not affect the decision’s lawfulness.

The claimant sought permission to appeal on five grounds, including failure to consider supporting evidence and application of the wrong test. The central issue was whether the Secretary of State had asked whether an immigration judge might accept the account, rather than whether she considered the conversion genuine.

1. Permission granted in part. Lord Justice Moore-Bick granted permission to appeal on the ground that the Secretary of State may have failed to ask the correct question, or may have applied the correct question incorrectly. The other four grounds had no significant prospect of success.
2. The two letters of 22 July 2013 gave reasons for one decision. The second letter was intended to be read with and amplify the first, so they could properly be read together.
3. The risk faced on return, if the conversion account were accepted, was not a factor which the Secretary of State had to take into account when deciding whether the representations amounted to a fresh claim. The country-guidance findings in NM (Christian Converts) Afghanistan Country Guidance [2009] UKAIT 45 meant that she must in any event have been aware of the nature and severity of the risk.
4. The applicable fresh-claim test, identified in WM(DRC) v Secretary of State for the Home Department, was whether, if the fresh evidence were before a tribunal together with the existing material, there was a real chance that the tribunal would accept it and allow the appeal.
5. The Secretary of State might be entitled to regard the account as lacking credibility, but that was not the question she had to answer. Supporting material came from the claimant, his girlfriend, his brother and others, and he had previously been regarded as credible when giving largely uncorroborated evidence. It was therefore arguable that an immigration judge might accept his account.

• Court of Appeal (Civil Division): granted permission to appeal on the fresh-claim-test ground only and refused permission on the remaining grounds.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the judicial-review claim, holding that the fresh-claim test had been applied and that subsequent treatment in Afghanistan did not affect the decision’s lawfulness.