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

A refusal to treat further submissions as a fresh claim may be impugned only if it is Wednesbury unreasonable, assessed with anxious scrutiny. The inquiry closely reflects whether a hypothetical tribunal would be reasonably likely to allow the proposed appeal.

Medical evidence which merely records injuries as consistent with an applicant’s account may rationally be given little weight where it uncritically accepts that account, does not confront earlier undisturbed adverse credibility findings, and does not explain alternative causes. Thin and indirect evidence from friends may likewise carry little weight.

Country guidance is not a tick list. Even so, a claimant must show facts capable of placing him within a relevant risk category. A past escape following a bribe, residence in the United Kingdom and visible scarring did not do so on the evidence presented.

The applicant, a Sri Lankan national, sought judicial review of the Secretary of State’s decision of 23 October 2013 not to treat further submissions made on 22 February 2010 as a fresh asylum or human-rights claim.

His original asylum appeal had been dismissed by an Immigration Judge on 21 July 2006 after adverse credibility findings. The further submissions included a report by Dr Josse concerning scars and statements by two persons said to know of the applicant’s LTTE involvement and ill-treatment. The Secretary of State also relied on country guidance concerning risk on return to Sri Lanka.

The central issue was whether the refusal was Wednesbury unreasonable, applying anxious scrutiny, because the new evidence gave the applicant a realistic prospect that a hypothetical tribunal would allow an appeal.

1. The judicial-review application was refused. The Secretary of State was entitled to conclude that the further submissions did not amount to a fresh claim and that a hypothetical tribunal would not be reasonably likely to allow an appeal.

2. The applicable review was Wednesbury review conducted with anxious scrutiny. As explained by YH v Secretary of State for the Home Department, [2010] EWCA Civ 116, and MN (Tanzania) v Secretary of State for the Home Department, [2011] EWCA Civ 193, that assessment closely approaches the question whether a hypothetical judge would be reasonably likely to allow the appeal. The Tribunal did not, however, identify any irrationality in the Secretary of State’s answer to that question.

3. The Secretary of State could rationally give Dr Josse’s report little weight. Although the doctor was experienced, the report accepted the applicant’s narrative without qualification, did not engage with the earlier adverse credibility findings, and described the injuries only as consistent with that narrative. The report did not sufficiently explain why other causes of the scars were excluded or materially advance the applicant’s case.

4. The Secretary of State could also give little weight to the witnesses’ short, indirect statements. Their status as recognised refugees did not determine the merits of this applicant’s claim. Their relationship with him, the prior credibility findings, and the thin and partly hearsay nature of their evidence were relevant to the weight a hypothetical tribunal might attach to it.

5. The Tribunal applied the country guidance in GJ and Others (post-civil war: returnees) Sri Lanka CG, [2013] UKUT 00319. It accepted that country guidance was not a tick list, but held that even the applicant’s account at its highest did not put him within a relevant risk category. His previous release after a bribe, visible scarring, and residence in the United Kingdom did not indicate that he would be on a stop list or otherwise be of adverse interest.

6. The respondent was awarded costs of £4,840.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review application refused in [2015] UKUT 97 (IAC).

• Immigration Judge: The applicant’s original asylum appeal was dismissed on 21 July 2006. The decision contained adverse credibility findings.

• Earlier judicial review proceedings: Previous applications brought in 2006 and 2007 were refused at paper and permission stages.