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

Under paragraph 353 of the Immigration Rules, further submissions amount to a fresh claim only if they are significantly different from material already considered and, viewed with the earlier material, create a realistic prospect of success before an immigration judge. The Secretary of State must apply anxious scrutiny to that assessment.

A refusal is unlawful where it fails to engage with new expert evidence that directly undermines a central inference supporting the earlier finding that the claimant faces no objective risk. The court reviews the decision on public law grounds and will quash a flawed refusal, but will not ordinarily declare that a fresh claim exists unless only a favourable decision is lawfully possible.

The applicant, a Sri Lankan national, sought judicial review of the Secretary of State’s decision of 28 May 2015 that his further asylum submissions did not amount to a fresh claim under paragraph 353 of the Immigration Rules.

His earlier asylum appeal had been dismissed by the First-tier Tribunal. Although the judge accepted core aspects of his account concerning recordings held for a Sri Lankan politician, the judge found that he faced no objective risk on return. The applicant’s further submissions included an expert report addressing why the politician’s apparent safety did not show that the applicant was safe.

The central issue was whether the Secretary of State had applied anxious scrutiny when deciding that the new material gave no realistic prospect of success before an immigration judge.

1. The claim succeeded. The Secretary of State’s decision that the further submissions did not amount to a fresh claim was unlawful and was quashed.

2. Paragraph 353 requires two judgments. The decision-maker must first decide whether the new material has already been considered. If it has not, the decision-maker must decide whether that material, taken with the old material, creates a realistic prospect that an immigration judge would allow the claim. The prospect need only be more than fanciful. The assessment is subject to public law review and must be conducted with anxious scrutiny: WM (DRC) v SSHD [2006] EWCA Civ 1495.

3. The First-tier Tribunal’s earlier determination was the necessary starting point. Properly read, it accepted the core of the applicant’s account and rejected future risk principally because it inferred from Z’s continued safety that those interested in the recordings believed them destroyed.

4. The expert report directly addressed that inference. It explained why Z might not have been targeted despite any continuing risk to the applicant. The Secretary of State’s refusal did not engage with that material, yet incorrectly stated that no explanation had been provided to answer the judge’s reasoning. Since the evidence could undermine the most powerful basis for the earlier objective-risk finding, its omission showed a failure to apply anxious scrutiny.

5. The expert could not fairly be criticised for failing to address matters outside his expertise or matters not relied on by the First-tier Tribunal. The applicant’s ability to remain in Sri Lanka and leave it safely might be relevant to an overall assessment, but it did not justify rejecting the expert evidence without proper consideration.

6. The Tribunal declined to declare that the submissions necessarily constituted a fresh claim. Quashing followed from the flawed assessment, but the Secretary of State could not only lawfully decide the paragraph 353 question in the applicant’s favour.

• Upper Tribunal (Immigration and Asylum Chamber): On judicial review, quashed the Secretary of State’s decision of 28 May 2015 under paragraph 353 of the Immigration Rules: [2016] UKUT 27 (IAC).
• First-tier Tribunal (Immigration and Asylum Chamber): Judge A J M Baldwin dismissed the applicant’s asylum appeal in a determination dated 9 March 2015. Permission to appeal was later refused by both the First-tier Tribunal and the Upper Tribunal.