R (on the application of H) v Secretary of State for the Home Department [2008] EWHC 2174 (Admin), [2008] All ER (D) 68 (Sep)
Queen’s Bench Division, Administrative Court, Cranston J 12 September 2008
Rule 353 of the Immigration Rules (the rules) applies where a person, whose claim for asylum or for leave to remain on human rights grounds was refused, has left the UK, but then returned and made another claim
Galina Ward (instructed by Duncan Lewis & Co) for the claimant. Jeremy Johnson (instructed by the Treasury Solicitor) for the secretary of state.
The claimant was a citizen of Iraq from the Kurdish Autonomous Zone (KAZ). He arrived in the UK in November 2000. He claimed asylum on the basis that he feared ill-treatment by the authorities in the KAZ due to his employment by an Iranian trader and his involvement in the illegal sale of a mummy. That claim was ultimately unsuccessful and the claimant returned to Iraq. He returned two years later and again claimed asylum, asserting that he had been detained and mistreated in a manner that had not occurred previously.
The secretary of state refused to treat that claim as a fresh claim under r 353 of the rules. She was of the opinion that the claimant’s representations were based on the same reasons as those given in the previous asylum claim and that no evidence had been produced to support the claim that he had been arrested and tortured upon his return to Iraq for what would, in any event, be a criminal matter. The consequence of r 353 not applying was that the claimant could not appeal from within the UK.
The claimant was ultimately removed to Iraq. He applied for judicial review. The secretary of state maintained her decision, despite the claimant serving expert evidence in relation to an arrest warrant that was said to show that he would be at risk of further arrest on return to Iraq.
The issues included whether or not r 353 of the rules applied where a person, whose claim for asylum or for leave to remain on human rights grounds was refused, left the UK, but then returned and made another claim.
Mr Justice Cranston:
Rule 353 provided, so far as material: “‘When a human rights or asylum claim has been refused...and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether or not they amount to a fresh claim. Submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.”
The terms of r 353 were clear enough as to when it applied: first, a human rights or asylum claim had been refused and, second, any appeal relating to the claim was no longer pending.
Those conditions were satisfied in the instant case because the claimant’s asylum claim had been refused and his appeal had been unsuccessful. On its face, therefore, the rule applied. His lordship turned to consider whether there was any reason that it should not.
Hypothetical claim
His lordship considered a hypothetical situation where a person had a claim refused, there was no appeal outstanding, and he left the UK. He was caught up in a different war in a different country and arrived again in the UK making a claim. Why should r 353 not apply to that type of hypothetical claim?
In the first possibility, if the secretary of state accepted the claim, that was the end of the matter. The claim had succeeded.
If the secretary of state did not—the second possibility—she had to, in terms of the rule, determine whether or not it amounted to a fresh claim.
If she decided that it constituted a fresh claim, then her decision on the claim itself could be appealed to the tribunal in the ordinary way under s 92(4). So the person could have the claim examined by an immigration judge.
If unhappy with the decision of the immigration judge the person could have it tested further by other judges.
The third possibility was if the secretary of state rejected the claim and also decided that it did not constitute a fresh claim. In that situation her decision on the fresh claim point could be challenged in judicial review proceedings.
If the judicial review was successful the secretary of state might well change her mind on reconsideration. All of that seemed a perfectly sensible framework to handle a claim in the hypothetical situation advanced.
The use of the phrase “further submissions” in r 353 might be inelegant. It was however clear that “further submissions” could not be read as meaning “further submissions in support of an existing claim” for the simple reason that r 353 applied only when a human rights or asylum claim had been refused and all appeals had been exhausted. In other words r 353 only applied when there was no extant claim.
Moreover, use of the phrase “further submissions” did not appear inappropriate when used in the context of a rule providing a framework for deciding whether or not there was a fresh claim. The further submissions could be held to constitute a fresh claim but equally be said to relate to a previously rejected claim.
His lordship went on to deal with the application on the facts and held that it should be dismissed.
