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

A decision on further submissions must be subjected to anxious scrutiny. It must assess new evidence in the context of earlier positive credibility findings, current country guidance, and the evidence as a whole.

Describing evidence as self-serving is insufficient without reasons. A family member’s statement can lend weight to a protection claim, although its weight depends on the whole evidential picture. A decision-maker must also connect evidence of diaspora activity with evidence that the home-state authorities know of, and are concerned by, that activity.

The applicant, a Sri Lankan Tamil seeking international protection, challenged the Secretary of State’s decision of 18 September 2015. The decision rejected his further submissions and declined to treat them as a fresh asylum or human-rights claim under paragraph 353 of the Immigration Rules.

An Immigration Judge had dismissed the applicant’s original appeal in 2010 but made positive findings on the core of his account, including past detention and torture. The further submissions included evidence of diaspora activities in the United Kingdom and letters from the applicant’s father, a Sri Lankan lawyer, and the Sri Lankan authorities.

The central issue was whether the decision-maker had lawfully assessed that material in light of the earlier credibility findings and the current Sri Lankan country guidance.

1. The claim succeeded. The Secretary of State’s decision was quashed because it failed to apply anxious scrutiny to the further submissions.

2. The 2010 Immigration Judge had accepted the core of the applicant’s account. The decision-maker was required to assess the new material in that important context. It was not enough to rely on the earlier conclusion that the applicant could safely relocate, because the relevant country guidance had subsequently been superseded by GJ and Others [2013] UKUT 00319. Under that guidance, the material question was the Sri Lankan authorities’ present perception of the returning Tamil.

3. The decision-maker failed to engage with the applicant’s detailed account of United Kingdom diaspora activities. It also failed to consider that account together with evidence that the Sri Lankan authorities knew of those activities and had harassed the applicant’s parents. The lawyer’s letter was materially misdescribed as not referring to the applicant.

4. The father’s letter could not lawfully be rejected merely as self-serving because it came from a family member. That label required a reason. A family statement may corroborate and add weight to a claim; its effect must be assessed in the round. The further reason given, that the letter did not show a risk to the applicant, ignored its apparent account of attempts by the authorities to locate or pressure him.

5. Post-decision material was excluded because it had not been considered by the primary decision-maker. The Tribunal followed the general prohibition on rolling judicial review, distinguishing AK (Afghanistan) [2007] EWCA Civ 535, where supplementary decisions had addressed the later material.

6. Absent the identified errors, the same decision was not bound, or even likely, to have followed. If the new account and Sri Lankan evidence were accepted, the applicant might be at real risk under the current country guidance. The mental-health issue did not provide an additional basis to invalidate the decision. The Tribunal therefore quashed the decision of 18 September 2015.

• Upper Tribunal (Immigration and Asylum Chamber): On judicial review, quashed the Secretary of State’s decision of 18 September 2015 declining to treat the further submissions as a fresh claim.
• Immigration Judge: In February 2010, dismissed the applicant’s asylum appeal while accepting the core of his account and finding that he could relocate to Colombo.