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

For a decision under the Immigration Rules paragraph 353, judicial review asks whether refusal to treat further submissions as a fresh claim was irrational on traditional Wednesbury grounds. The court does not decide the fresh claim itself. Reported country-guidance decisions may assist as evidence of country conditions, but a tribunal’s recital of evidence must be distinguished from evidence it accepted. Isolated passages are not automatically determinative. A decision-maker may focus rationally on the risk categories and material actually relied on, and may attach little weight to psychiatric evidence that does not address earlier credibility findings or alternative explanations for symptoms. The appeal was dismissed.

The appellant, a Sri Lankan national, had an earlier asylum claim rejected after the tribunals accepted some past detention and ill-treatment but rejected important aspects of his account and found no continuing risk on return. In 2014 he made further submissions relying on country guidance in GJ and a psychiatric report indicating severe depression, post-traumatic stress disorder and suicide risk. The respondent refused to treat the submissions as a fresh claim under paragraph 353 of the Immigration Rules. Upper Tribunal Judge Warr refused the renewed application for permission to apply for judicial review on 28 July 2015. The central issue was whether the respondent’s assessment of the protection and mental-health evidence was arguably irrational.

1. Outcome and legal framework. The appeal was dismissed. Paragraph 353 required the respondent to decide whether the further submissions were significantly different because their content had not previously been considered and, taken with the earlier material, created a realistic prospect of success notwithstanding rejection. The respondent applied the correct legal test identified in WM (DRC) v SSHD [2006] EWCA Civ 1495. The court’s task was limited to reviewing the decision on traditional Wednesbury grounds, applying Associated Provincial Picture Houses Ltd. v Wednesbury Corp. [1948] 1 KB 223, rather than deciding the fresh claim itself.
2. Protection ground. The respondent rationally began with the earlier tribunal findings and considered the risk categories identified in GJ and Others (Post-Civil War: Returnees) [2013] UKUT 319 (IAC). Familiarity with GJ did not require the respondent to identify and assess every passage of expert evidence reproduced in its appendices but not relied on in the further submissions. A tribunal’s recital of evidence must be distinguished from evidence accepted as accurate and reliable. Isolated passages which played no apparent part in the tribunal’s decision, including material described as speculation, could not automatically establish a realistic prospect of success. The respondent’s protection assessment was therefore not irrational.
3. Mental-health ground. It was rational to attach little weight to the psychiatric report because it substantially depended on the appellant’s account, did not address the earlier adverse credibility findings, and did not explain whether symptoms could be feigned or exaggerated or have alternative causes. The absence of earlier evidence of suicidal impulses or an attempted suicide was also relevant. Although the respondent accepted that the adequacy of mental-health facilities in Sri Lanka might be better assessed by an immigration judge if the issue arose, the reasons given for rejecting the report were not irrational.
4. The Upper Tribunal had not erred in refusing permission to apply for judicial review. The Court of Appeal dismissed the appeal.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Warr refused the renewed application for permission to apply for judicial review on 28 July 2015. The challenge concerned the respondent’s refusal to treat the further submissions as a fresh claim.
• Court of Appeal (Civil Division): Arden LJ granted permission to appeal on 1 March 2016. The court dismissed the appeal, holding that the respondent’s decision was not arguably irrational.