Liban v Secretary of State for the Home Department

Under paragraph 353 of the Immigration Rules, the Secretary of State must first decide whether further material is significantly different from the material previously considered and, if so, whether it creates a realistic prospect of success before the First-tier Tribunal. Judicial supervision applies the Wednesbury test with anxious scrutiny. The decision need not repeat the test for every individual submission; the material must be assessed in the round.

An expert’s opinion does not have to be accepted merely because it is expressed by an expert. It may reasonably be rejected where it is unsupported by independent objective evidence, speculative, or based on uncheckable assertions. In an automatic deportation case, the statutory public interest in deportation remains substantial, and rehabilitation alone will rarely outweigh it.

The claimant, a Somali national from Puntland, challenged the Secretary of State’s refusal to treat further representations as a fresh claim under paragraph 353 of the Immigration Rules. The representations relied principally on two reports by Dr Hoehne concerning risks arising from the claimant’s Christian faith, Jareer clan membership and the presence of Al-Shabaab in Puntland.

He also challenged the refusal to revoke a deportation order made after his conviction and sentence to imprisonment for public protection. The detention claim had been transferred to the county court, and the proposed removal had become academic. The central issues were whether the paragraph 353 decision was unlawful and whether any statutory or Convention exception required revocation of the deportation order.

1. The court granted permission to apply for judicial review of the paragraph 353 decision but refused permission concerning revocation of the deportation order. The substantive application for judicial review was refused.

2. Paragraph 353 involves two questions: whether the further material is significantly different from the material previously considered, and, if so, whether it creates a realistic prospect of success before the First-tier Tribunal. The court was bound by MN (Tanzania) v Secretary of State for the Home Department [2011] EWCA Civ 193; [2011] 1 WLR 3200, which held that the supervisory test is Wednesbury unreasonableness applied with anxious scrutiny. The court rejected reliance on the different approaches discussed in TK v Secretary of State for the Home Department [2009] EWCA Civ 1550 and ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6; [2009] 1 WLR 348.

3. The Secretary of State was entitled to assess the reports together with the earlier material and to conclude that there was no realistic prospect of success. The evidence did not establish attacks by Al-Shabaab on Christians in Puntland, persecution of Christians, or a sufficient risk to Jareer. The reports contained unsupported assertions, speculation, uncheckable sources and material inconsistencies. An expert opinion need not be accepted merely because it is expressed by an expert.

4. The combined claim based on Christian faith and clan membership did not alter that conclusion. The reasoning in the earlier Upper Tribunal decision also answered the reliance on HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31; [2011] 1 AC 596, particularly because the claimant had produced no evidence of persecution.

5. The application to revoke the deportation order had not been framed expressly or impliedly under article 8. Even considering article 8, Part 5A of the Nationality, Immigration and Asylum Act 2002 required little weight to be given to private life established while the claimant was unlawfully present. The public interest required deportation, and the claimant had not shown the very compelling circumstances required to outweigh it. The Secretary of State was therefore entitled to refuse revocation.

The judgment was a first-instance decision of the Administrative Court. The claimant’s earlier asylum and deportation proceedings before the AIT and Upper Tribunal were described in the judgment, but no appeal from the present decision is stated.