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

When assessing whether further asylum submissions amount to a fresh claim, clear adverse credibility findings from an earlier tribunal decision may be relied upon where later material creates no material uncertainty requiring a further oral hearing. The new material must be assessed against the applicable country guidance and the individual’s profile and likely conduct on return. Permission to appeal may be refused where the lower tribunal adequately addressed the relevant risks and there is no reasonable prospect that another immigration judge would reach a favourable conclusion. An extension of time will likewise be refused where permission to appeal is unavailable.

The claimant, a Zimbabwean national, challenged the Secretary of State’s refusal to treat further submissions as a fresh asylum claim. His original asylum appeal had been dismissed by the First-tier Tribunal, which made adverse credibility findings. The Upper Tribunal dismissed the judicial review claim, taking account of the claimant’s alleged sur place activities and the applicable Zimbabwe country guidance.

The claimant sought permission to appeal and an extension of time. The central issues were whether the new material created sufficient uncertainty to require a further hearing on credibility, and whether the Upper Tribunal had properly assessed the risk arising from the claimant’s alleged MDC profile and possible political activities on return.

1. Disposition. The application for permission to appeal was refused. The application for an extension of time was also refused.
2. Earlier credibility findings. The First-tier Tribunal had made clear and detailed findings that the claimant was not credible. The additional material concerning alleged vigils and sur place activities did not create material uncertainty about those findings. A further oral hearing was therefore unnecessary. The approach associated with Thangeswararajah was consistent with that conclusion: where earlier findings are clear and later material does not generate relevant uncertainty, the issue need not be reopened for further credibility evidence.
3. Fresh-claim assessment. The question was whether the material relied upon gave a realistic prospect that a new immigration judge would reach a favourable conclusion. The assessment had to take account of the earlier credibility findings and the country guidance in CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 00059 (IAC).
4. Country-guidance risks. The relevant categories included a significant MDC profile, political activities likely to attract adverse attention from ZANU-PF, and activity in which the claimant would be reasonably likely to engage but for fear of that adverse attention. The Upper Tribunal adequately considered those factors. There was no evidence that the claimant had a profile likely to place him on a targeted list, or that he would engage in political activity in Zimbabwe creating a real risk of persecution or treatment contrary to human rights.
5. The proposed grounds accordingly had no reasonable prospect of success. The Upper Tribunal was entitled to conclude that the further submissions did not amount to a fresh claim.

• Court of Appeal (Civil Division) — On 6 October 2015, the court refused permission to appeal and refused an extension of time: [2015] EWCA Civ 1599.
• Upper Tribunal (Immigration and Asylum Chamber) — Considered and dismissed the claimant’s judicial review challenge to the Secretary of State’s refusal to accept the further submissions as a fresh claim. The Upper Tribunal later refused permission to appeal.
• First-tier Tribunal — On 1 March 2010, dismissed the claimant’s original asylum appeal and made adverse credibility findings.