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

A decision on a fresh claim must apply country guidance through a fact-sensitive assessment of the applicant’s current individual circumstances. In assessing internal relocation, the decision-maker must address material matters such as language, minority status, family support, documentation and the ability to obtain accommodation and work.

A present inability to return because travel documentation is unavailable prevents a protection claim succeeding solely on risks caused by that absence. It does not preclude protection where there is a real risk of persecution or serious harm on independent grounds. The paragraph 353 assessment must be conducted with anxious scrutiny.

The applicant was an Iraqi Kurd and Sunni Muslim from Mosul. His earlier asylum appeal had been dismissed after adverse credibility findings. He later made further submissions, relying principally on the country guidance in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC), which accepted that his home area was affected by internal armed conflict.

The Secretary of State refused to treat the submissions as a fresh claim under paragraph 353 of the Immigration Rules. A supplementary letter later gave further reasons, including reasons concerning documentation and internal relocation to Baghdad. The applicant sought judicial review, contending that the respondent had not applied AA (Article 15(c)) Iraq CG properly or examined his personal circumstances with anxious scrutiny.

1. The judicial review claim succeeded. The decisions of 10 March and 10 November 2016 were quashed.

2. The applicable review of a paragraph 353 decision was on Wednesbury grounds, subject to anxious scrutiny. The respondent had failed to apply the binding country guidance in AA (Article 15(c)) Iraq CG [2015] UKUT 00544 (IAC) through an adequate assessment of the applicant’s individual circumstances.

3. The guidance required a fact-sensitive internal-relocation assessment. The respondent had not properly addressed the applicant’s ability to speak Arabic, despite his screening interview identifying Kurdish and Badini only. Nor had she properly evaluated the consequences of his current lack of family contact, his having left Mosul as a child, and his position in Baghdad as both a Kurd and a Sunni Muslim, each a minority there.

4. The supplementary letter was predominantly a further-reasons letter under Caroopen v Secretary of State for the Home Department [2016] EWCA Civ 1307. However, its reliance on later Home Office country material made it partly a new-material letter. The applicant could therefore rely on relevant passages of that material in challenging the decision.

5. The respondent had also misconstrued the documentation guidance in AA (Article 15(c)) Iraq CG. If return is not currently feasible, a claim cannot succeed merely because of risks arising from missing Iraqi documentation. But a claimant may still establish international protection if a real risk of persecution or serious harm arises independently of, or not solely from, that documentation problem. A holistic risk analysis under the country guidance was required.

6. It was unnecessary to determine the Article 8 issue. It was to be considered afresh by reference to the position then current.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review allowed; the Secretary of State’s decisions of 10 March and 10 November 2016 were quashed.
• First-tier Tribunal: On 17 June 2010, the applicant’s appeal against refusal of further leave to remain was dismissed. Permission to appeal was later refused by the Upper Tribunal.