OE (Jamaica) v Secretary of State for the Home Department

Immigration Rules rule 353 requires a two-stage assessment of further submissions. The material must be significantly different because its content was not previously considered. Taken with the earlier material, it must also create a realistic prospect of success notwithstanding its rejection.

An arguable fresh-claim issue may arise where evidence relevant to persecution based on perceived sexual orientation has not been addressed. At the permission stage, the court does not determine the ultimate weight of evidence. However, the fact that weight is for the primary decision-maker is not automatically a complete answer, particularly where professionally sourced evidence supports the claim.

The appellant, a Jamaican national, claimed asylum and human-rights protection after entering the United Kingdom. The First-tier Tribunal rejected his claim to be bisexual but accepted that he might previously have had experimental sexual encounters with men.

He later made further submissions, including a country report concerning persecution based on sexual orientation and professional evidence that his experiences had developed into a settled bisexual identity. The Secretary of State refused to treat the submissions as a fresh claim under rule 353. The Upper Tribunal refused permission to seek judicial review on 27 April 2015. The issue before the Court of Appeal was whether there was an arguable basis for challenging that refusal.

Permission to appeal was granted. The court was concerned only with the fresh-claim issue and did not determine the ultimate merits of the asylum claim.

1. Rule 353 involves a two-stage process. The court must first ask whether the further submissions are significantly different because their content has not already been considered. It must then ask whether, taken with the previously considered material, they create a realistic prospect of success notwithstanding their rejection. For the second stage, the court or tribunal puts itself in the position of the ultimate decision-maker.

2. The evidence concerning perceived sexual orientation disclosed an arguable issue. Although the report was primarily framed on the basis that the appellant was bisexual, it was capable of addressing persecution based on perceived sexual orientation. The Secretary of State’s response did not properly address that character of the evidence. The Secretary of State remained the primary decision-maker on the fresh-claim question.

3. The professional evidence concerning the appellant’s developing bisexual identity had not previously been considered and was capable of giving rise to a reasonable prospect of success. Its ultimate weight remained for the decision-maker. That consideration would not answer every case, since evidence which was clearly inconsistent with earlier evidence or clearly self-serving might fail to meet the rule 353 threshold.

4. The court corrected its initial procedural view by applying R (o/a NB (Algeria)) v SSHD [2012] EWCA Civ. 1050. On an appeal against an order refusing permission to bring judicial review proceedings, the Court of Appeal could not itself grant judicial-review permission and remit the matter. A corrective order was required, followed by an appeal listed on notice to both parties, unless the parties agreed that the appeal should be allowed by consent and the matter remitted.

5. If the appeal succeeded, the First-tier Tribunal’s existing findings would remain findings in the case. The Upper Tribunal should also have the opportunity to manage any future proceedings before it or the First-tier Tribunal, and the appellant should promptly seek case-management directions.

• Court of Appeal (Civil Division) — On 17 June 2015, on a renewed application arising from the Upper Tribunal’s refusal of permission to seek judicial review, granted permission to appeal in [2015] EWCA Civ 827.
• Upper Tribunal (Immigration and Asylum Chamber) — On 27 April 2015, refused permission to seek judicial review of the Secretary of State’s decisions refusing to treat the further submissions as a fresh claim.