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

Under paragraph 353 of the Immigration Rules, further asylum or human rights representations must be assessed with the earlier material. The question is whether an independent tribunal might realistically accept the claim, not whether the Secretary of State considers it likely to succeed. A realistic prospect means more than a fanciful prospect. The assessment must be conducted with anxious scrutiny, including careful consideration of evidence capable of materially affecting credibility. A decision-maker cannot reject new, apparently credible evidence through speculation or implausibility reasoning unsupported by the evidence. Where the new material could lead a tribunal to a different view, the representations may constitute a fresh claim.

The claimant, an Afghan national, challenged the Secretary of State’s refusal to treat further asylum and human rights representations as a fresh claim. The representations included a new statement from a former employer supporting material parts of his account, expert country evidence, medical evidence and alleged Taliban warning letters. His earlier asylum appeal had been dismissed by the First-tier Tribunal and the Upper Tribunal had found no material error of law. The central issue was whether the Secretary of State had lawfully applied paragraph 353 of the Immigration Rules, particularly the requirement to assess whether the new material created a realistic prospect of success before an immigration judge.

1. The claim succeeded. The Secretary of State’s decision letter was quashed. The representations were required to be treated as a fresh claim.
2. Paragraph 353 of the Immigration Rules requires a two-stage assessment. First, the Secretary of State must decide whether the further material is significantly different because it has not already been considered. Secondly, if it is significantly different, the material must be considered with the earlier evidence to decide whether it creates a realistic prospect of success.
3. The second question is not whether the Secretary of State believes the claim should succeed. It is whether an independent tribunal, applying anxious scrutiny, might realistically conclude that the claimant faces a real risk on return. The threshold is modest and excludes only a fanciful prospect.
4. The Secretary of State was entitled to begin with her own assessment of the merits, but had to keep the distinct tribunal-focused question in view. The court’s review was whether the decision was irrational or Wednesbury unreasonable, bearing in mind the duty of anxious scrutiny.
5. It was irrational to reject the new statement of the claimant’s former employer as evidence on which no reliance could be placed. The statement materially supported the claimant’s account, was not confined to information supplied by him, and was consistent with other evidence. It could not rationally be treated as incapable of attracting any weight from an immigration judge.
6. The decision also displayed unevidenced speculation about how the Taliban, the claimant and his employers would behave. Plausibility reasoning must be approached with caution in asylum cases involving unfamiliar social conditions. The failure to consider the evidence in the round provided an additional error. Similar concerns affected the treatment of the medical evidence and the risk of suicide, although the court avoided prejudging any future tribunal’s assessment of the merits.

• First-tier Tribunal: dismissed the claimant’s asylum and human rights appeal on 13 June 2012.
• Upper Tribunal: dismissed the further appeal on 30 October 2012, finding no material error of law.
• High Court (Administrative Court): granted substantive relief. The Secretary of State’s fresh-claim decision was quashed and the representations were to be reconsidered as a fresh claim.