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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

09 OCT 2014

Mohammadi v Secretary of State for the Home Department [2014] EWHC 2251 (Admin); (2014) PLLR 096

Mohammadi v Secretary of State for the Home Department [2014] EWHC 2251 (Admin); (2014) PLLR 096
Queen’s Bench Division, Administrative Court, Professor Christopher Forsyth
9 July 2014

Summary

Production of new evidence does not mandate reconsideration of a ‘fresh claim’ for asylum where it does not constitute significantly different material from that already considered. Mitchell arguments to strike out a defence do not apply where a case held a public interest in securing the lawful exercise of public power that transcends the interests of the litigants immediately involved.

Detail

(1) The claimant, an Iranian national, sought judicial review of the defendant’s refusal of a ‘Fresh Claim’ for asylum under paragraph 353 of the Immigration Rules, which mandates that a failed asylum applicant may only reapply with new material significantly different from that already considered.

(2) The claimant arrived in the UK clandestinely and was discovered by immigration officers in 2008, claiming asylum the same day. His claim was refused, and his appeal to the Asylum and Immigration Tribunal was dismissed, as was his application for reconsideration to the High Court.

(3) He appeared in Ireland in 2011 and claimed asylum there, but was returned to the UK under the Dublin Convention. He made further submissions on his asylum application in 2011 and 2012, and after consideration, he was again refused asylum in 2012. The claimant’s primary ‘fresh submission’ was a series of documents written in Kurdish and Farsi which consisted, according to the claimant, of criticisms of the Shia religion and the Iranian government, and which the claimant states that he wrote. These documents were reviewed at the earlier hearing, but the claimant offered a new translation of them in his 2011 submissions.

(4) The claimant filed suit challenging the defendant’s finding that he had ‘no realistic prospect’ of success in his challenge and arguing that the finding was vitiated by procedural impropriety.

(5) The claimant’s primary argument was that the defendant’s reasoning was flawed in finding that that the claimant had no realistic prospect of success because he was not a credible witness on the basis of his failure to provide certain documents at his initial hearing, which he stated that he had now provided.

(6) The defendant responded that the failure to provide the documents was one of many factors which undermined the claimant’s credibility.

(7) HELD: Applying WM (DRC) v Secretary of State for the Home Department, the claim was dismissed. The defendant considered the effect of the new documents on the overall question of credibility, and found that it did not mean the original assessment was mistaken. The court then assessed the decision under a Wednesbury unreasonableness standard and found it was not unlawful. The court also found that facts brought to a second adjudicator which had not been made in the first application were to be treated with ‘the greatest circumspection’ per Devaseelan v SSHD.

(8) As a preliminary matter, the court rejected a Mitchell argument to strike out the SSHD’s detailed grounds of defence, which was served 9 months late. The court held that because the case held a public interest in securing the lawful exercise of public power that transcends the interests of the litigants immediately involved, it was not in the public interest to strike out the detailed grounds of defence on decide the case on an artificial basis. It additionally found that Mitchell was not concerned with the power to strike out a pleading, but with relief from sanctions.

Claim failed.

Key Paragraphs

[5] – Mitchell in cases with a public interest
[26] – Assessment of new material
[28] – Wednesbury unreasonableness
[32] – Conclusion
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