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31 JAN 2013

ST v Secretary of State for Home Department [2012] EWHC 988 (Admin); (2013) PLLR 004

Immigration - Asylum - Wednesbury unreasonableness - Anxious scrutiny

The Court held that the decision-making process applied when rejecting the Claimant's asylum claims had been unlawful, as had its failure to consider whether her further representations amounted to a fresh claim. The decisions were therefore quashed.

20 December 2012

Administrative Court

HHJ Thornton

(1)        The Claimant, who was identified only as ST, is a Pakistani national who arrived in the UK on a forged passport on 17 October 2005. The Claimant's asylum claim, which was based on her allegations that she had been the victim of significant marital violence and on-going life-threatening persecution, was rejected on 27 October 2005. The Claimant did not exercise her rights of appeal. She was released from immigration detention, whereupon she then absconded. The Claimant made further representations claiming asylum, but these were rejected and were held not to amount to a fresh claim.

(2)        The Claimant made this application for judicial review, seeking to set aside the two decisions to reject her asylum claims and refuse to accept her representations as fresh claims.

(3)        The substantive challenge made to the Defendant's decisions was that there had been insufficient consideration of the relevant Country Guidance for Pakistan. It was also alleged that the Defendant had not properly considered whether there was a realistic prospect that an Immigration Judge would take a different view of the Claimant's claim.

(4)        The Defendant alleged that given that the Claimant had not appealed the Defendant's rejection of her 2005 asylum claim, the decision-maker had been entitled to take account of that decision-maker's findings as to credibility.

(5)        HELD: The Court determined that a decision maker, when determining further asylum or human rights claims, must consider five questions:

‘(i)        Is the further claim a human rights or asylum claim?

(ii)        Has the claim previously been rejected or withdrawn and is any appeal relating to that claim no longer pending?

(iii)       Is the present claim accepted or rejected?

(iv)       If rejected, is the content of the submission significantly different from the material that had previously been considered?

(v)        When taken together with the previously considered material, does the present claim create a realistic prospect of success notwithstanding its rejection?'

(6)        The Court held that the decision making process in relation to the further representations had been flawed in three ways: Firstly, there had been no consideration of whether they amounted to a fresh claim. Secondly, there had been no consideration of whether the further representations amounted to a different claim to that earlier rejected. Thirdly, there had been no consideration of whether a Judge exercising anxious scrutiny might find the Claimant's appeal to be successful.

(7)        There had been further failures as there had been no application of the anxious scrutiny test as to the consideration of credibility and whether an appeal judge might find the adverse credibility findings to be unreliable.

(8)        The Court found that the first asylum decision had wrongly been made having regard to the Claimant failing to make her asylum claim at the earliest possible opportunity, when it ought to have considered if it had been made when she had a reasonable opportunity to do so. In any event, the Claimant had made her claim upon arrival at Heathrow airport, and thus satisfied both tests.

(9)        The Court concluded that the initial decision rejecting the Claimant's asylum claim had considered matters that should not have been taken into account, had failed to consider relevant matters. Accordingly, the decision had not made in accordance with the law. The same finding was reached in relation to the second decision, which was found to suffer the same flaws.

(10)     The decisions were therefore both held to be Wednesbury unreasonable and were set aside.

Claim succeeded.

Decisions set aside.

Key paragraphs

[45] - Test to apply.

[59] - Credibility. 

[82]-[84] - Second decision flawed.

[86] - No anxious scrutiny.

[89] - Credibility.

[95] - First decision unlawful.

[105] - Second decision unlawful.

[108]-[109] - Conclusion.

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