RB (Sri Lanka), R (on the application of) v Secretary of State for the Home Department

For a fresh claim, new material must be significantly different and create a realistic, rather than fanciful, prospect of success before an immigration judge. The material must be assessed with anxious scrutiny and in the context of the earlier findings.

New medical evidence does not necessarily overcome adverse credibility findings. Expert evidence cannot usurp the immigration judge’s fact-finding role, particularly where it cannot explain material inconsistencies in the claimant’s account. Detention guidance concerning torture or serious mental illness does not apply unless its evidential threshold is met. Even where it is engaged, a proven absconding history may constitute very exceptional circumstances justifying detention, provided it is assessed as part of the overall circumstances.

The claimant, a Sri Lankan national, sought judicial review of decisions refusing to treat further submissions as a fresh claim under paragraph 353 of the Immigration Rules. He relied principally on new psychiatric and scarring evidence concerning alleged torture, and on the country guidance in GJ and Others (post-civil war returnees) Sri Lanka CG [2013] UKUT 319 (IAC).

He also challenged his detention, arguing that the Secretary of State had failed to apply the relevant policy after receiving medical evidence indicating torture and mental illness. The issues were whether the fresh-claim decisions were irrational and whether continued detention was unlawful.

1. Fresh claim. The further medical evidence was new, expert, comprehensive and compliant with the Istanbul Protocol. Nevertheless, considered holistically with the evidence before the First-tier Tribunal, it did not create a realistic prospect of success before a fresh immigration judge.
2. The medical evidence compounded rather than neutralised the claimant’s credibility difficulties. In particular, the claimant had previously said that, apart from marks around his eyes, no beating-related scars remained visible. The later findings could not explain that evidence or the other inconsistencies in his account. The expert opinions therefore could not amount to independent evidence of torture and could not replace the immigration judge’s assessment of credibility.
3. The Secretary of State had properly considered the current country guidance in GJ and Others (post-civil war returnees) Sri Lanka CG [2013] UKUT 319 (IAC). The claimant’s alleged work at an LTTE-associated petrol station, failed-asylum-seeker status and alleged bribery of officials did not establish a risk on return under that guidance.
4. Detention. The claimant would benefit from treatment for PTSD, but that did not establish that his symptoms could not be managed in detention. Chapter 55.10 of the Enforcement Instructions and Guidance was therefore not engaged.
5. Even if the policy applied, there were very exceptional circumstances justifying detention. The claimant had absconded immediately after becoming appeal-rights exhausted, and the Secretary of State had assessed that risk rather than treating it as determinative. The claim was dismissed. Any damages would have been nominal.

The judgment describes earlier asylum proceedings before the tribunal, whose decision was not disturbed. The present proceedings were a first-instance judicial review claim in the Administrative Court. The claim was dismissed.