NK v The Secretary of State for the Home Department

When deciding whether further submissions amount to a fresh asylum claim, the Secretary of State must subject the new material to anxious scrutiny and assess it holistically with the earlier evidence. The question is whether the material gives the claimant a realistic prospect of succeeding before an immigration judge. Evidence from independent supporters may have material weight where it rests on their own assessment rather than simply repeating the claimant’s account. Evidence obtained from contacts in the country of origin, together with supporting correspondence and documents, must also be considered as part of the whole evidential picture.

The applicant, a Cameroonian national, claimed asylum on the basis that she was a lesbian and would face persecution in Cameroon from the state, her husband and family members. Her fast-track asylum appeal was dismissed by Judge A M Black on 20 June 2013.

She later made further submissions, including letters from members of the Lesbian Immigration Support Group, evidence from Mr Yankam concerning enquiries in Cameroon, emails from her brother and an arrest warrant. The Secretary of State declined to treat the material as a fresh claim. The applicant sought judicial review of that refusal.

The central issue was whether the further evidence, considered with the earlier material, gave the applicant a realistic prospect of success before an immigration judge.

1. The application for judicial review was granted. The Secretary of State’s decisions, read together, did not demonstrate anxious scrutiny of the further evidence.

2. The relevant question was whether the new material, taken with the earlier evidence, gave the applicant a realistic prospect of succeeding before an immigration judge. It was not open to the Secretary of State to conclude that there was no such prospect.

3. The letters from members of the Lesbian Immigration Support Group were capable of carrying weight. Although they took account of the applicant’s account, they also reflected the writers’ own assessment of her sexuality based on their experience and meetings with her.

4. Mr Yankam’s evidence was not merely self-serving. It was based on his contacts in Cameroon and was supported by email correspondence. The arrest warrant was also material. Those matters required consideration in an appeal rather than summary rejection at the fresh-claim stage.

5. Considering all the evidence holistically, there was a realistic prospect of success on appeal. Permission to appeal to the Court of Appeal was refused. The respondent was ordered to pay the applicant’s costs, to be agreed or determined by the Tribunal on written submissions.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review granted of the Secretary of State’s refusal to treat the further submissions as a fresh claim.

• Secretary of State for the Home Department: Further submissions were refused as a fresh claim in letters of 2 September 2013 and 16 January 2014.

• First-tier Tribunal: The applicant’s fast-track asylum appeal was dismissed by Judge A M Black on 20 June 2013.