IO (Nigeria), R (On the Application Of) v Secretary of State for the Home Department

Under paragraph 353 of the Immigration Rules, a fresh-claim decision involves two stages. The decision-maker must first identify whether the further material is significantly different. If it is, the material must then be assessed with the earlier evidence to determine whether there is a realistic, more-than-fanciful prospect of success before an immigration judge. Anxious scrutiny applies throughout.

Where the earlier reasons are clear and emphatic, the decision-maker may adopt them when addressing the second stage without repeating them. In detention cases, vulnerability under the Adults at Risk policy must be weighed against immigration-control factors. A failure to apply the policy may establish unlawfulness, but damages may be nominal if lawful detention would in any event have followed.

The claimant, a Nigerian national, challenged two decisions of the Secretary of State. First, he challenged the conclusion that further asylum and human-rights submissions did not amount to a fresh claim under paragraph 353 of the Immigration Rules. Secondly, he challenged his detention from 28 July 2016 to 22 February 2017 under the Hardial Singh principles and the Adults at Risk in Immigration Detention policy.

The earlier asylum claim had been rejected on grounds including lack of a well-founded fear, sufficient protection in Nigeria and the availability of internal relocation. The further submissions included medical evidence of scarring and depression. The central issues were whether the fresh-claim assessment applied the correct threshold with anxious scrutiny, and whether detention remained lawful during the identified periods.

1. Fresh claim. The judicial review challenge to the paragraph 353 decision was dismissed. The decision-maker correctly treated the fresh-claim inquiry as distinct from deciding whether to accept the further submissions. The first question was whether the material was significantly different. Only if it was would the decision-maker assess whether, taken with the earlier material, it created a realistic prospect of success before an immigration judge. That threshold was low, involving a more-than-fanciful chance of success, and required anxious scrutiny: WM (DRC) v SSHD (2006) EWCA Civ 1495.
2. The further material did not materially address the independent reasons previously given for rejecting the protection claim. The Canadian report did not show insufficient state protection. The assertion that the gang could locate the claimant elsewhere in Nigeria was unsupported. The medical evidence of moderate depression did not establish that internal relocation would be unduly harsh. The Secretary of State had therefore acted rationally in concluding that the claim was bound to fail.
3. The reasons were adequate. Although R (TK) v SSHD (2009) EWCA Civ 1550 emphasised the need for reasons addressing the realistic-prospect question, the present decision had already given clear and emphatic reasons. In those circumstances, it was permissible to conclude that the further submissions failed “for the reasons stated above”, consistently with R (HN (Afghanistan)) v SSHD (2016) EWCA Civ 123.
4. Detention. Detention during Period (1), from 28 July to 5 October 2016, was lawful. During Period (2), from 6 October to 9 December 2016, it was unlawful because the claimant was wrongly assessed under the Adults at Risk policy after the policy’s torture definition had been unlawfully narrowed. However, the Secretary of State proved that he could and would have detained the claimant lawfully had the policy been correctly applied. Only nominal damages were therefore payable: R (EO) v SSHD (2013) EWHC 1236 (Admin).
5. Detention during Period (3), from 10 December 2016 to 22 February 2017, was lawful. The claimant’s substantial risk of absconding, the imminent prospect of removal and the limited medical evidence justified continued detention. The overall detention did not breach the Hardial Singh principles.

Not stated in the judgment.