HN & SA (Afghanistan) (Lead Cases Associated Non-Lead Cases), R (on the application of) v The Secretary of State for the Home Department

For a fresh asylum claim under the Immigration Rules, the decision-maker must consider new and earlier material together and ask whether it gives an independent tribunal a realistic prospect of success. The decision-maker may assess the reliability and cogency of new evidence. Judicial review examines rationality and lawfulness, not the merits or the security situation afresh. A decision letter can be read as a whole and need not repeat every point if it explains the overall conclusion. A policy requiring attention to vulnerable returnees did not create a general bar on enforced return. The appeals were dismissed.

HN and SA, Afghan nationals, challenged refusals to treat further representations as fresh asylum or human-rights claims under rule 353. The representations relied on worsening security conditions, possible subsidiary protection under Article 15(c) of the Qualification Directive, difficulties relocating to Kabul, medical evidence and vulnerability on return.

The Upper Tribunal granted permission in the lead cases but dismissed the claims on 21 July 2015, and refused permission in the non-lead cases. The appeals concerned whether the Secretary of State had rationally applied the fresh-claim test, whether an operational policy concerning vulnerable returnees had been breached, and whether the non-lead cases had been dealt with fairly.

The Court of Appeal unanimously dismissed the appeals in both the lead and non-lead cases.

1. Fresh-claim test. Under rule 353, the Secretary of State had to consider whether the new material was significantly different from material previously considered and, if so, whether the new and earlier material together created a realistic prospect of success before an immigration judge. The test was correctly stated in the decision letters. The decision-makers were entitled to assess the reliability, methodology and cogency of the expert and country evidence and to form a view about its likely effect on a hypothetical tribunal. Their criticisms did not show that they had substituted their own merits assessment.
2. Judicial review. The Tribunal and this court had to review the lawfulness and rationality of the Secretary of State's decisions, not rehear the evidence or make a detailed factual assessment of Afghanistan's security situation. The letters had to be read fairly and as a whole. They did not need to repeat every point advanced where they explained why the material, considered in the round, did not create a realistic prospect of success. The approach criticised in R (TK) v Secretary of State for the Home Department [2009] EWCA Civ 1550 was distinguishable.
3. Country guidance. The decision-makers fairly considered whether the newer material had fundamentally overtaken AK (Article 15(c)) Afghanistan CG [2012] UKUT 163 (IAC). They accepted some deterioration in conditions but were entitled to conclude that the material did not rationally require departure from the existing guidance.
4. Vulnerability policy. The Operational Guidance Note required proper regard to vulnerability, particularly in relation to women and children, but did not impose a general prohibition on enforced return. The decisions addressed the vulnerabilities advanced and disclosed no reviewable failure to apply the policy. Strasbourg observations concerning Article 3 were of no significant assistance to the issues before the court.
5. Non-lead cases. The Tribunal was entitled to refuse permission where the common legal issues had been resolved, fresh individual decisions were foreseeable, and the applicants had sought deferral pending further representations.

1. Court of Appeal (Civil Division) In HN & SA (Afghanistan) [2016] EWCA Civ 123, the appeals from the Upper Tribunal were dismissed.
2. Upper Tribunal (Immigration & Asylum Chamber) On 21 July 2015, in UTIJR 6 JR/2772, 2793, 2813, 2778 & 2781/2015, permission was granted in the lead cases but the claims for judicial review were dismissed. Permission was refused in the non-lead cases.
3. First-tier Tribunal Earlier asylum appeals by the appellants had been dismissed, on 30 September 2013 in HN's case and 17 September 2014 in SA's case. Permission to appeal to the Upper Tribunal was refused.