SS v The Secretary of State for the Home Department

Further representations constitute a fresh claim where, taken with previously considered material, they create a realistic prospect of success before an immigration judge. Country guidance has special status and should be followed unless very strong grounds, supported by clear, cogent and reliable fresh evidence, justify departure. A country policy document is additional evidence. It does not automatically displace country guidance, and its significance must be assessed against the claimant’s individual circumstances. A decision refusing to recognise a fresh claim may be a distinct public-law decision bearing on detention where it removes an anticipated barrier to removal.

The claimant, an Iraqi national from Mosul, challenged the defendant’s refusal to treat further representations as a fresh claim under paragraph 353 of the Immigration Rules. The representations concerned the risk of Article 3 ill-treatment arising from the claimant’s inability to obtain a Civil Status Identity Document in Iraq. The defendant relied on an updated country policy document and correspondence from Iraqi diplomatic officials, and rejected the applicable country guidance.

The claimant had been removed to Iraq and sought judicial review of the refusal decision, also contending that the decision bore on the lawfulness of his immigration detention. The central issues were whether the fresh evidence justified departure from the country guidance and whether the refusal decision was unreasonable.

1. Fresh claim test. Paragraph 353 required the defendant to consider whether the new material, taken with material previously considered, created a realistic prospect of success before an immigration judge. The question was not whether the defendant considered the claim likely to succeed. The assessment had to be made on Wednesbury principles and with anxious scrutiny, applying R (WM (DRC)) v Secretary of State for the Home Department [2006] EWCA Civ 1495 and AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535.
2. Country guidance. The guidance in AAH (Iraqi Kurds – internal relocation) Iraq CG UKUT 00212 (IAC) and AA (Iraq) v Secretary of State for the Home Department [2017] EWCA Civ 944 had special status. It remained authoritative unless superseded or replaced. Departure required very strong grounds supported by cogent, clear and reliable evidence. The recent and detailed nature of the guidance required particularly careful scrutiny.
3. CPIN evidence. The updated CPIN and Iraqi Embassy correspondence established only that digital records and a microfilm back-up existed. They did not show that the records were searchable, complete, accessible to the claimant, or capable of enabling him to obtain a CSID within a reasonable time. They did not address the claimant’s lack of identity documents, lack of family support in Baghdad, inability to return to Mosul, or the practical attitude of officials towards undocumented persons. The defendant was entitled to consider the CPIN, but was not compelled to apply it. The approach in Rasoul v SSHD PA/13927/2016 was of limited assistance because it concerned materially different circumstances. The reasoning in Omar Rasoul Ali v SSHD PA/05814/2017 supported the conclusion that the country guidance could reasonably be followed.
4. Disposition of the judicial review. The defendant’s conclusion that the further representations had no realistic prospect of success was Wednesbury unreasonable. No reasonable Secretary of State could have concluded that an immigration judge was bound to prefer the CPIN to the country guidance. The decision was quashed.
5. Detention. Applying R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 and R (Lauzikas) v Secretary of State for the Home Department [2018] EWHC 1045 (Admin), the refusal of a putative fresh claim was a distinct decision bearing on detention because it removed a potential barrier to removal. It was not inevitable that the claimant would have remained detained if an in-country appeal had arisen.

First-instance judicial review proceedings. No prior appellate decision concerning this claim was stated.